SERVICES ENGAGEMENT AGREEMENT
These terms are in effect as of 1st June 2021. Last updated on 14 February 2022.
THIS AGREEMENT is made between
1) SWITCH IN SDN. BHD. (Company No.: 1366193-P), a company incorporated in Malaysia having a registered address at B-2-18, Pusat Perniagaan Seksyen 8 (8 Avenue), Jalan Sungai Jernih 8/1, 46050 Petaling Jaya, Negeri Selangor, and a place of business at2-1 & 2-2, Jalan Tasik Utama 7 Medan Niaga Tasik Damai, Sungai Besi, 57000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur (hereinafter referred to as “the Company”, which expression shall include its successors in title) of one part; and
2) The Merchant whose details can be found in the Merchant Submission Form. (hereinafter referred to as the “Merchant”, which expression shall, where the context so admits, include its estates, heirs, personal representatives, permitted assigns and/or successors in title as the case may be) of the other part.
On the date as stated in the Merchant Submission Form.
WHEREAS: –
(A) SWITCH IN SDN. BHD. (Company No.: 1366193-P) is a company incorporated in Malaysia under the Companies Act 2016, having a registered address at B-2-18, Pusat Perniagaan Seksyen 8 (8 Avenue), Jalan Sungai Jernih 8/1, 46050 Petaling Jaya, Negeri Selangor, and a place of business at 2-1 & 2-2, Jalan Tasik Utama 7 Medan Niaga Tasik Damai, Sungai Besi, 57000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur (hereinafter referred to as “the Company”).
(B) The Company is creating, managing, operating, facilitating and maintaining a system or a platform (hereinafter referred to as “Switch-In”) and is providing a variety of services through Switch-In, the details of which are more particularly set out in Clause 8 hereto (hereinafter referred to as the “Services”).
(C) The Merchant is engaged in, and is carrying on, the trade, business or general commercial activity/activities for purposes of gain and profit the following description as provided by the Merchant in the Merchant Submission Form (hereinafter referred to as the “Business”).
(D) The Merchant is desirous of enhancing the growth of its Business by engaging the Services provided by the Company (hereinafter referred to as the “Engagement”).
(E) In the spirit of mutual trust, confidence and cooperation, and in order to regulate the relationship between the parties hereto, as well as to govern the Engagement by the Merchant of the Services provided by the Company, the parties hereto have agreed to enter into this Agreement and have knowingly and willingly agreed to be bound by the terms and conditions hereinafter appearing.
NOW IT IS HEREBY AGREED as follows: –
1. INTERPRETATION
1.1. Definitions
In this Agreement, unless expressly provided for, or unless the context otherwise requires, the following expressions shall have the meaning set forth opposite such expressions: –
| Agreement | : | This Agreement and the Merchant Submission Form made between SWITCH IN SDN. BHD. (Company No.: 1366193-P) of one part; and the Merchant whose name(s) and/or description(s) is stated in the Merchant Submission Form. |
| Application | : | The application to be submitted by an Eligible Entity (as defined herein) to the Company for the engagement of the Services (as defined herein). |
| Business | : | The trade, business or general commercial activity/activities carried on by the Merchant for purposes of gain and profit, the details of which are more particularly set out in (D) above. |
| Business Day | : | The regular business day excluding a Saturday, a Sunday and a public holiday, on which financial institutions and/or commercial banks in the Federal Territory of Kuala Lumpur and/or the State of Selangor are open for general business. |
| Database | : | The database of information or details collected from the End Users (as defined herein) during their registration as End Users, which may include without limitation, the name, gender, phone number, email address and date of birth of the End Users. |
| Dealings | : | The previous dealings and/or interactions between the Merchant and the End Users which shall include without limitation, the following: –
(a) the registration as End User by invitation of the Merchant;
(b) the redeeming, downloading and/or using of a voucher or vouchers published by the Merchant; and
(c) the attending of, or responding to an invitation to attend, an event held, organised, hosted, created or managed by the Merchant.
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| Eligible Entity | : | The entity which is eligible to submit an Application (as defined herein) to the Company for the engagement of the Services which shall be either a sole proprietorship, a partnership or a company incorporated in Malaysia under the laws of Malaysia and registered with the SSM. |
| End Users | : | The users who have registered with the Company as users of Switch-In, either by own accord or by invitation by a Merchant. |
| Engagement | : | The engagement by the Merchant of the Services provided by the Company. |
| Existing Database | : | The existing database of the Merchant which may include the information and details of its existing and current customers of the Merchant.
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| Follower(s) | : | The membership status assigned to an End User who “follows”; “likes”; or in any other way subscribes to the Merchant and/or its services, who shall enjoy the exclusive privileges offered by the Merchant, subject to terms and conditions.
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| The Company | : | SWITCH IN SDN. BHD. (Company No.: 1366193-P)having a registered address at B-2-18, Pusat Perniagaan Seksyen 8 (8 Avenue), Jalan Sungai Jernih 8/1, 46050 Petaling Jaya, Negeri Selangor, and a place of business at2-1 & 2-2, Jalan Tasik Utama 7 Medan Niaga Tasik Damai, Sungai Besi, 57000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur, which expression shall include its successors in title. |
| Initial Term | : | The initial term of the as stated in the Merchant Submission Form |
| Key Account Manager | : | The person or persons assigned by the Company as the primary person in charge, the primary contact person and the liaison between the Merchant and the Company, whose responsibility is more particularly stated under Clause 2.4hereto. |
| Merchant | : | The party whose name(s) and/or description(s) is stated in the Merchant Submission Form and/or (C) above. |
| Merchant Submission Form | : | The document submitted by the Merchant detailing all the relevant information, which shall be deemed to be part of this Agreement |
| Public Users | : | The users who are the ordinary users of the Website and who have yet to be registered as End Users. |
| Renewal Term | : | The term which the Agreement may be renewable, and which is stated in the Merchant Submission Form |
| Services | : | All or any of the services provided by the Company (as defined herein), the details of which are more particularly set out in Clause 8 hereto. |
| SSM | : | The Companies Commission of Malaysia or the Suruhanjaya Syarikat Malaysia. |
| Subscription Fees | : | The non-refundable fees payable by the Merchant to the Company for the Services provided, with the amount being specified in the Merchant Submission Form |
| Switch-In | : | The exchange platform and back-end system created, managed, operated, facilitated, maintained and owned solely by the Company which may include the Website (as defined herein), electronic services, databases, web app, mobile app, or any other similar applications and technologies. |
| Website | : | The web page under the domain name switch-in.com.my, swin.com.my and all the related subdomains, homepages, subpages, Merchants’ dedicated pages and microsites. |
1.2. Construction
In this Agreement, unless expressly provided for, or unless the context otherwise requires: –
1.2.1. words applicable to natural persons shall include firms, companies, corporations, states, administrative and/or governmental entities and vice versa;
1.2.2. references to the masculine gender shall include the feminine and neuter genders and vice versa;
1.2.3. references to the singular number shall include the plural and vice versa;
1.2.4. all references to provisions of statutes shall include such provisions as modified or re-enacted;
1.2.5. references to clauses shall be construed as references to clauses of this Agreement;
1.2.6. where two or more persons or parties are included or comprised in any agreements, covenants, terms, conditions and/or undertakings, such agreements, covenants, terms, conditions and/or undertakings shall be enforceable by them jointly and severally; and
1.2.7. where any agreements, covenants, terms, conditions and/or undertakings are expressed to be made by or on the part of two or more persons or parties, all such agreements, covenants, terms, conditions and/or undertakings shall be deemed to be made by and binding on such persons or parties jointly or severally.
1.3. Heading
The headings as appearing in this Agreement are for ease of reference only and shall be ignored in construing this Agreement, and shall not be taken, read and construed as essential parts of this Agreement.
2. ELIGIBILITY AND REGISTRATION
2.1. Eligibility for Engagement
Only a sole proprietorship, a partnership or a company incorporated in Malaysia under the laws of Malaysia and registered with the SSM is eligible (hereinafter referred to as the “Eligible Entity”) to submit an application to the Company for the Engagement of the Services (hereinafter referred to as the “Application”).
2.2. Registration as Merchant
Subject to the abovementioned eligibility for the Engagement and subject further to the approval of the Application, the approval of which shall be at the sole and absolute discretion of the Company, the Services will be made available to an Eligible Entity upon its registration with the Company as a Merchant.
2.3. Supporting Documents
For purposes of facilitating the registration of an Eligible Entity as a Merchant, an Eligible Entity shall produce and submit the following supporting documents to the Company together with a duly completed application form: –
2.3.1. all relevant documents lodged with the SSM, which shall include without limitation, the following (or the equivalent documents or forms under the Companies Act 2016): –
(a) the Certificate of Incorporation or the Certificate of Registration of Business;
(b) the Certificate of Incorporation on Change of Name of Company (if any);
2.3.2. any other relevant documents or information which the Company may from time to time request from the Merchant.
2.4. Key Account Manager
Upon the approval of the Eligible Entity’s application by the Company and upon the successful registration of the Eligible Entity as a Merchant, a Key Account Manager will be assigned by the Company who will act as the primary person in charge, the primary contact person and the liaison between the Merchant and the Company and who will also be responsible for the following: –
2.4.1. the account opening for the Merchant;
2.4.2. the management of the account for the Merchant;
2.4.3. the training of the system for the Merchant; and
2.4.4. the maintenance of the system for the Merchant.
2.5. Discretion of the Company to Approve Applications
It is hereby expressly agreed by the Merchant that the approval of an Application by any Eligible Entity SHALL BE at the sole and absolute discretion of the Company, and that the Company may consider and/or approve the Application by any or all other Eligible Entity/Entities, NOTWITHSTANDING THAT the Business of the other Eligible Entity/Entities is/are essentially the same, identical, or similar to that of the Merchant, and NOTWITHSTANDING THAT the potential markets of the other Eligible Entity/Entities and that of the Merchant is the same or similar.
3. CONSIDERATION
3.1. In consideration of the Services provided by the Company to the Merchant, the Merchant hereby agrees to provide, in return, a good and valuable consideration to the Company (hereinafter referred to as the “Consideration”).
3.2. The Consideration shall take the form of the Subscription Fees as stated in the Merchant Submission Form, and may be varied at the consent of Parties.
4. PAYMENT POLICY
4.1. The Company uses a secure payment method and service to protect customers’ purchases and to protect against the risk of the Merchant not fulfilling its responsibilities. To ensure that there are no issues with the quality of the goods/services provided by the Merchant, transaction payments to the Merchant via Switch-In will be held in a separate account (the “Payment Account”).
4.2. The Company shall charge the Merchant a processing fee for every transaction between the Merchant and its customers on the Switch-In Platform (the “Processing Fee”). The processing fee, together with any changes or caps it may be subject to, shall be specified in the Merchant Submission Form.
4.3. After payment is made by the customer (the “Payment”), the Payment will be held in the Payment Account for a minimum period of fourteen (14) days.
4.4. In the event that there are any refund requests and/or complaints made by the End Users to the Company, the End User will be directed to communicate the same directly with the Merchant.
4.5. The Company will release the Payment, less the Processing Fee, to the Merchant on a fixed day of every calendar month in accordance with the Merchant Submission Form, provided that the Payment has been made at least fourteen (14) days prior to the date of release of the Payment in accordance with clause 4.3
4.6. In the event of any dispute over the quality and/or delivery of the goods/services by the Merchant to its customers, the Company will act as a mediator between the customer and the Merchant to facilitate an amicable solution. In the meantime, the Company may withhold the Payment to the Merchant nowithstanding clause 4.4 until such dispute has been resolved, or for a maximum of two (2) months from the date of the transaction. The Company disclaims all liability for the aforesaid mediation process and will release the payment and take no further steps to resolve the dispute after the said two (2) months duration.
4.7. The merchant is entirely responsible for the payment of its own income tax and any other taxes and/or contributions applicable to its business or activity, as well as for the compliance with any other related obligations required by applicable laws.
5. CANCELLATION POLICY
5.1. If the Merchant is unsatisfied with the Company’s Services they may cancel the Services and this Cancellation Policy shall apply.
5.2. The Merchant may cancel the Services at any time by sending a request via email to billing@switch-in.com.my.
5.3. No requests for refund of the Subscription Fees already paid upon cancellation will be accepted by the Company.
5.4. Any cancellation request in accordance with clause 5.2 shall only take effect at the end of the billing cycle in which the cancellation request was made. The billing cycle shall be as specified in the Merchant Submission Form. The Merchant will be required to fulfil its obligations in this Agreement for the remainder of the billing cycle until the Agreement is terminated.
6. TERM, DURATION AND RENEWAL OF THE AGREEMENT
6.1. The Term, Duration and Renewal Term of this Agreement shall be as stated in the Merchant Submission Form .
6.2. This Agreement will be renewed on an “auto-renewal” basis where the Agreement will be automatically renewed unless the Merchant explicitly informs the Company otherwise. The auto-renewal notice shall be sent no later than sixty (60) days prior to the expiry of the Term, and such notice once sent shall be deemed to have been received by the Merchant.
6.3. If the Company at its sole and absolute discretion decides that it is necessary to impose new terms, the parties hereto shall execute a supplementary agreement to give effect to such addition of new terms, failing which the Company shall be under no obligation to renew the term of this Agreement.
7. ENGAGEMENT AND PROVISION OF SERVICES
7.1. The Merchant hereby agrees to engage, and the Company hereby agrees to provide, the services stated in Clause 8 hereto (hereinafter collectively referred to as the “Services”) to the Merchant through Switch-In, a platform created, managed, maintained and owned solely by the Company.
7.2. For the avoidance of doubt, it is the responsibility of the Merchant to procure its own equipment for usage of Switch-In by its staffs and employees. the Company will not in any event or circumstance provide any equipment, terminal, mobile phone, tablet or electronic device to the Merchant or its staffs and employees.
7.3. Further, it is hereby agreed by the parties hereto that although the Company will take all reasonable steps and efforts to ensure that Switch-In and the Website are available and accessible, such availability and accessibility may be suspended, interrupted, or terminated due to circumstances either within or outside the Company’s control and the Company shall not in any way whatsoever be held liable for such suspension, interruption or termination.
8. SERVICES
8.1. Merchant’s Followers Management
8.1.1. The Company will provide a platform for the Merchant to manage its Followers.
8.1.2. Limited information may be collected from the End Users upon their registration as a user of Switch-In (hereinafter referred to as the “Database”).
8.1.3. Such Database shall form part of the property of the Merchant ONLY IF the End Users have previous Dealings (as defined herein) with the Merchant.
8.1.4. Alternatively, and in addition to the above, the Merchant may transfer and/or import its Existing Database (as defined herein) to Switch-In.
8.1.5. Notwithstanding the above, it is hereby expressly agreed that the Company, its subsidiaries (if any), associates, affiliates, sister companies or any other companies which have obtained express written permission of the Company, or their respective directors, managers, officers, employees, brokers or agents (where applicable) shall at all times have the access to the Database and shall be at liberty to utilise the Database in any way whatsoever provided always that such usage of such information shall be expressly agreed by the End Users.
8.2. Covered Deals Management
8.2.1. The Merchant may publish and/or manage covered deals to administer a promotion, an offer, or a special discount to the End Users.
8.2.2. Generally, the Merchant may at any point of time publish, make active or make public the number of covered deals as agreed between the Merchant and the Company, although the Merchant may create and maintain any number of inactive vouchers.
8.2.3. The Merchant shall honour any and all vouchers published by the Merchant and shall solely be responsible to resolve any dispute with the End Users which may arise from or in connection with the Merchant’s publishing of the covered deals.
8.3. Event Ticket Management
8.3.1. The Merchant may hold, organise, host, create or manage an event ticketing on, with or through Switch-In.
8.3.2. Generally, the Merchant may at any point of time publish, make active or make public the number of events tickets as agreed between the Merchant and the Company, although the Merchant may create and maintain any number of inactive events.
8.3.3. The Merchant shall solely be responsible for the safety of the attendees of all events held, organised, hosted, created or managed by the Merchant.
8.3.4. The Merchant hereby releases the Company of any liabilities arising from the attendance of the End Users to any such events held, organised, hosted, created, or managed by the Merchant.
8.4. System Training
8.4.1. The Key Account Manager will arrange for and/or provide the following training to the Merchant and/or its staff and employees: –
(a) a set-up training to the Merchant and/or its staffs and employees to use, manage and familiarise themselves with Switch-In upon request; and
(b) periodical continuing trainings depending on the circumstances, such as the employment of new staffs and employees by the Merchant.
8.5. System Maintenance
8.5.1. The Company will undertake scheduled maintenance and urgent maintenance of Switch-In from time to time.
8.5.2. The Company will inform the Merchant on the details of scheduled System Maintenance at least fourteen (14) days before the commencement of such scheduled System Maintenance.
8.5.3. The Company will inform the Merchant as soon as it is practicable on the details of any urgent System Maintenance.
8.6. Monthly Report and Ad Hoc Report
8.6.1. A system-generated report will be prepared by the Company for the Merchant on a monthly basis at no additional cost (hereinafter referred to as the “Monthly Report”). The said report will be made available to the Merchant via the Merchant Portal.
8.6.2. For the avoidance of doubt, the Monthly Report is strictly for the internal use by the Merchant and shall not be monetized unless such monetization is in collaboration with the Company.
8.6.3. The Merchant also agrees that the Monthly Report shall not be shared externally for any reason in any way whatsoever unless the prior consent of the Company in writing for such external sharing has been obtained by the Merchant.
8.7. Business and Financial Advisory
8.7.1. In addition to the abovementioned services and as a gesture of good will, the Company will collaborate with their recommended partner(s) to provide additional advisory services to the Merchant at no additional cost.
8.7.2. The additional advisory services provided by the Company as mentioned above shall comprise initial advisory services, and in the event that the Merchant wishes to purchase any products or services, the Merchant shall henceforth bear its own costs.
9. SPECIFIC TERMS
9.1. For clarity purposes, the specific terms (if any) for each of the Services will be included in the as an addendum.
10. REPRESENTATIONS AND WARRANTIES BY MERCHANT
10.1. The Merchant hereby represents and warrants to the Company that: –
10.1.1. it is a sole proprietorship, a partnership or a company incorporated in Malaysia properly and legally registered with the SSM;
10.1.2. it has the full corporate power, authority and legal rights to enter into this Agreement;
10.1.3. it has the full corporate power, authority and legal rights to deliver, perform and carry out its obligations contemplated under this Agreement;
10.1.4. the execution, delivery and performance of this Agreement will not violate any order, judgment, decree binding upon the Merchant;
10.1.5. this Agreement constitutes a legal, valid and binding obligation of the Merchant;
10.1.6. this Agreement is enforceable in accordance with its Constitution or its Memorandum and Articles of Associations;
10.1.7. it shall not act, conduct or do any activity which are prohibited under Restrictions and Prohibitions as provided under Clause 11 hereto; and
10.1.8. it shall observe strictly the confidentiality of this Agreement as provided under Clause 15 hereto,
and the Merchant acknowledges that the Company has entered into this Agreement in full reliance on its representations and warranties as aforesaid.
11. RESTRICTIONS AND PROHIBITIONS
11.1. The Merchant hereby expressly agrees that it shall not do or attempt to do any of the following activities or behaviours which are hereby expressly prohibited on Switch-In and the Website: –
11.1.1. engaging in any activity through Switch-In or the Website which may amount to or constitute a criminal offense, or which may give rise to a civil liability;
11.1.2. tampering, hacking, modifying, corrupting and/or interfering with the security and the proper functioning of Switch-In and the Website;
11.1.3. circumvention of the Company’s system, platform, security or network including accessing data not intended for the Merchant;
11.1.4. logging into an account which the Merchant is not expressly authorised to access;
11.1.5. using any information not belonging to the Merchant, whether obtained through proper or improper channel, for any commercial purposes;
11.1.6. posting and sharing information which are misrepresenting, defamatory, abusive, deceptive, fraudulent, misleading, inaccurate or discriminatory in nature;
11.1.7. submission of inaccurate information, misrepresentation or false representation of information, commission of fraud;
11.1.8. soliciting, promoting and/or advertising for any commercial, political, religious purposes without prior written consent from the Company;
11.1.9. soliciting, promoting and/or advertising for End Users and/or Public Users to become a user or member of any other services either directly, indirectly or potentially competitive with Switch-In; or
11.1.10. sending malicious, unauthorised and/or unsolicited messages, junk emails, announcements or other advertising or promotional materials to End Users or Public Users who did not specifically request or subscribe for such information.
11.2. It is hereby agreed that the above is merely an indicative and a non-exhaustive list of prohibited activities or behaviours.
12. OWNERSHIP OF CONTENT AND INFORMATION
12.1. It is hereby agreed that the technology of Switch-In as well as the content and information contained in the Website shall remain the property of the Company and the ownership of the same shall in no way be transferred to the Merchant, notwithstanding that the Merchant may be allowed by the Company to engage the Services provided by the Company and to utilize the platform of Switch-In.
12.2. The Merchant hereby agrees not to distribute, copy, transmit, perform, reproduce, publish, transfer, sell or resell in any way whatsoever, any content and information contained on or obtained from Switch-In and the Website.
13. OWNERSHIP OF DATABASE
13.1. The Database of End Users who have prior Dealings (as defined herein) or interactions with the Business of the Merchant and the Existing Database of the Merchant shall remain the property of the respective Merchant.
13.2. Upon termination of Engagement by the Merchant, the Company will provide a copy of such Database to the Merchant in native format.
13.3. The Merchant hereby agrees that the Company shall not be obliged to provide a system, platform, application or method for the Merchant to view, edit, save or print the Database upon termination of Engagement.
13.4. If the Merchant wishes to view the Database upon termination of Engagement, the Company may provide the system, platform, application or method of viewing such Database, subject to additional charges payable by the Merchant to the Company which shall be determined at the sole and absolute discretion of the Company.
13.5. It is hereby expressly agreed by the Merchant that if the Merchant becomes insolvent or is wound up for any reason whatsoever, the Merchant shall promptly notify the Company in writing as soon as practicable and its account with the Company shall thereafter be terminated within thirty (30) days upon the said written notification.
13.6. In any such event of insolvency or winding up, all Services provided by the Company to the Merchant shall be terminated, restricted and/or suspended. Nevertheless, the Merchant will be able to view the Database for internal purposes only for thirty (30) days from the said termination, restriction and/or suspension of the Services.
13.7. Notwithstanding the above, it is hereby expressly agreed that the Company, its subsidiaries (if any), associates, affiliates, sister companies or any other companies which have obtained express written permission of the Company, or their respective directors, managers, officers, employees, brokers or agents (where applicable) shall at all times have the access to the Database and shall be at liberty to utilise the Database in any way whatsoever provided always that such usage of such information shall be expressly agreed by the End Users, whether or not the Engagement has been terminated or has expired.
14. DEFAULT BY THE PARTIES
14.1. Notwithstanding any provisions contained herein, if the Merchant shall at any time be in default under this Agreement, the Company shall have the option to suspend the provision of the Services to the Merchant and shall require the Merchant to remedy such default within fourteen (14) days from its receipt of a notice in writing from the Company specifying such default or within such longer period of time as may be specified in such notice.
14.2. If the Merchant fails to remedy the default after receiving the said notice from the Company within the said fourteen (14) days or within such longer period of time as may be specified in such notice, this Agreement may be terminated forthwith by the Company by a notice in writing.
14.3. The termination of this Agreement under this Clause 14 shall be without prejudice to the rights of the Company accrued up to the date of such termination.
15. CONFIDENTIALITY
15.1. The parties hereto have acquired from and imparted to and/or may from time to time acquire from and impart to the other, certain confidential information relating to Switch-In and/or the Services provided by the Company in general.
15.2. The confidential information may include, without limitation, any data, information, knowledge, documents of whatsoever nature imparted from or acquired by the parties hereto either directly or indirectly in connection with this Agreement.
15.3. The parties hereto shall at all times observe and maintain strict confidence between themselves and the Merchant hereby declares that it shall not use any information concerning the provision of the Services by the Company or the Website in general, either during the term of this Agreement or thereafter, in a manner prejudicial or detrimental to the interest of the Company.
15.4. The confidential information shall remain subject to this Agreement notwithstanding the expiry or termination of this Agreement.
16. DISCLAIMER OF WARRANTIES
16.1. It is hereby agreed by the parties hereto that the use of Switch-In and the Website in general are on an ‘as is’ basis and such use shall be at the risk of the Merchant.
16.2. Neither the Company nor its subsidiaries (if any), associates, affiliates, sister companies or their respective directors, managers, officers, employees, brokers or agents (where applicable) warrants that the use of Switch-In and the Website will be fully operating and uninterrupted, free from errors or omissions, free from viruses or any harmful components.
16.3. Neither the Company nor its subsidiaries (if any), associates, affiliates, sister companies, or their respective directors, managers, officers, employees, brokers or agents (where applicable) warrants that the contents or any information, services, products or vouchers provided through Switch-In are accurate, reliable and in a timely order.
16.4. The Company hereby expressly disclaims any and/or all representations, conditions and warranties, whether expressly or impliedly made, as to the operation of Switch-In, the Website, the contents and the information contained on the Website.
17. EXCLUSION OF LIABILITIES
17.1. To the fullest extent permissible by the laws of Malaysia, it is hereby expressly agreed by the parties hereto that the Company, its subsidiaries (if any), associates, affiliates, sister companies, or their respective directors, managers, officers, employees, brokers or agents (where applicable) SHALL NOT be liable for any direct, indirect, incidental, general, special, consequential or punitive damages arising out of, in connection with, or related to the End Users’ use of the Switch-In, the Website, the content and the information contained on the Website.
17.2. Further, it is hereby agreed that the Company, its subsidiaries (if any), associates, affiliates, sister companies, or their respective directors, managers, officers, employees, brokers or agents (where applicable) SHALL NOT be liable for any default or delay in the performance of its obligations under this Agreement where such default or delay in the performance was caused by or due to the acts of God, natural disasters, earthquakes, terrorism, fire, floods, riots, or any other similar events to the extent such event is beyond the reasonable control of the Company.
17.3. In addition to the above, it is hereby expressly agreed between the parties hereto that the Company DOES NOT accept any liability from the following: –
17.3.1. any damage and/or loss caused to the Merchant while using the Services or the Website in general;
17.3.2. any loss of data as a result of the Merchant’s use of the Services or the Website in general;
17.3.3. any loss of income, business, revenue, business, profits or contracts that results from the Merchant’s use of our Services; and
17.3.4. any claims brought against the Merchant by the End Users as a result of the End Users’ use of our Services or the Website in general.
18. INDEMNIFICATION AND RELEASE
18.1. The Merchant hereby expressly agrees that it shall SOLELY be responsible for all its interactions with the End Users of Switch-In and the Public Users of the Website.
18.2. The Merchant hereby expressly agrees to DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY, its subsidiaries (if any), associates, affiliates, sister companies, and their respective directors, managers, officers, employees, brokers and agents (where applicable) from and against all claims whether or not initiated by the End Users, and all expenses, including legal fees, arising out of or related to Services provided by the Company.
18.3. To the extent permitted by and under the laws of Malaysia, the Company is hereby RELEASED FROM any and all claims or liability related to the Services, the actions or inactions of the Merchant, including the omission or failure of the Merchant to comply with the any of the laws of Malaysia, and any speech or conduct of any of the End Users of Switch-In or the Public Users of the Websites.
19. SERVICE OF DOCUMENTS
19.1. Any document, letter, notice, request or demand required or permitted to be served by the Merchant to the Company under this Agreement shall be in writing and shall be deemed to be sufficiently served if it is sent by registered post to the following address: –
19.1.1. its registered address at B-2-18, Pusat Perniagaan Seksyen 8 (8 Avenue), Jalan Sungai Jernih 8/1, 46050 Petaling Jaya, Negeri Selangor; or
19.1.2. its place of business at 2-1 & 2-2, Jalan Tasik Utama 7 Medan Niaga Tasik Damai, Sungai Besi, 57000 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur.
19.2. Any document, letter, notice, request or demand required or permitted to be served by the Company to the Merchant under this Agreement shall be in writing and shall be deemed to be sufficiently served if it is sent by registered post to the address stated in (C) above.
19.3. Any change of address by the Merchant shall be communicated to the Company in writing within fourteen (14) days of such change of address.
20. WAIVER
20.1. The waiver by any party of any default or breach, and the failure of either party to exercise any right allowed under this Agreement SHALL NOT act as a waiver of any preceding or subsequent breach or default or a waver or forfeiture of any similar or future rights under this Agreement.
21. KNOWLEDGE OR ACQUIESCENCE
21.1. Knowledge or acquiescence by any party of or in any breach of any of the terms, conditions or covenants herein contained SHALL NOT operate as or be deemed to be waiver of such terms, conditions or covenants or any of them.
21.2. Notwithstanding such knowledge or acquiescence, each party hereto shall be entitled to exercise its respective rights under this Agreement and to require strict performance by the other party of the terms, conditions and covenants contained herein.
22. SEVERABILITY
22.1. Any term, condition, stipulation, provision, covenant or undertaking of this Agreement which is illegal, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, voidness, prohibition or unenforceability but shall not invalidate or render illegal, void or unenforceable the whole of this Agreement or any such term, condition, stipulation, provision, covenant or undertaking in any other jurisdiction.
23. COSTS AND EXPENSES
23.1. The Company shall bear the costs arising from and/or in connection with the preparation and/or execution of this Agreement including the stamp duty payable and the incidental charges for getting this Agreement stamped.
24. GOVERNING LAW AND JURISDICTION
24.1. This Agreement shall be governed, construed and take effect in all respects in accordance with the laws of Malaysia.
24.2. The parties hereto hereby submit unconditionally to the jurisdiction of the courts of Malaysia in all matters connected with or arising under this Agreement.
25. CHANGES IN LAWS, RULES AND REGULATIONS
25.1. In the event of any change in the legislation, laws, rules, regulations or any enactments adversely affecting any party, the affected party shall be entitled by written notice to propose reasonable amendments to the relevant terms of this Agreement and the other party shall as far as possible in the spirit of cooperation agree to such amendment as proposed.
26. SUCCESSORS-IN-TITLE
26.1. This Agreement shall be binding on the Merchant and upon its estates, heirs, executors, administrators, legal representatives, permitted assigns and/or successors-in-title as the case may be, and the Merchant, its estates, heirs, executors, administrators, legal representatives, permitted assigns and/or successors-in-title as the case may be, shall remain bound by this Agreement.
27. THE COMPANY’S RIGHT TO ASSIGN
27.1. The Company shall be at liberty without the Merchant’s consent, to assign and/or to transfer any and/or all of the Company’s rights, benefits and/or interest under this Agreement to any party the Company deems fit and all costs and expenses incidental thereto shall be paid by the Merchant.
28. TIME
28.1. Time, whenever mentioned in this Agreement, shall be of essence of this Agreement.
29. INDEPENDENT LEGAL ADVICE
29.1. The Merchant hereby declares and confirms that it has been advised to seek independent legal advice on the effects of its execution of this Agreement.
29.2. The Merchant agrees that the provisions contained herein shall be binding on the Merchant regardless of whether the Merchant has actually resorted to any such independent legal advice.
30. DECLARATION BY MERCHANT
30.1. The Merchant hereby declares that it has read and fully understood this Agreement and it is fully aware of its liabilities under this Agreement before the execution of the same.
31. ENTIRE AGREEMENT
31.1. This Agreement constitutes the entire obligation of the parties hereto with respect of the subject matter hereof and shall supersede any prior expressions of intent, expectation, communication, representation, agreement or understanding whether verbal or signed by or on behalf of all of the parties in this Agreement.