Biz(e)buddy™
TERMS AND CONDITIONS OF ACCESS AND USE
These terms and conditions (“this Agreement”) govern your access and use of the (i) BizEbuddy software applications; and (ii) online services provided by Uptrend Network Sdn. Bhd. (Company No. 587955-U).
Please read this Agreement carefully before you continue. By clicking the “I AGREE” icon at the end of this Agreement, you acknowledge and confirm that you have read, understood and agreed unconditionally to be bound by all the terms of this Agreement.
PART A - DEFINITIONS AND INTERPRETATIONS
1. Definitions and Interpretations
1.1 In this Agreement, unless the context otherwise requires, the following terms shall have the following meanings:
“Accompanying Materials” means any documentation, associated media, printed materials that accompany the Software, containing such information for the proper access and use of the Software which for the avoidance of doubt shall include the operating specifications and user manual;
“Company” means Uptrend Network Sdn Bhd (Company No.: 587955-U), a company incorporated in Malaysia;
“Computer” means the notebook computer and such other necessary hardware and/or equipment sold to you upon which the Software and/or other Third Party Software are installed or pre-loaded;
“Confidential Information” means (i) the Software; (ii) Accompanying Materials; (iii) any and all information communicated to you by Company (or otherwise received by you as a result of the parties’ relationship under and pursuant to this Agreement) and identified as confidential (or which by its nature is confidential); (iv) any and all information identified as confidential (or which by its nature is confidential) to which you have access in connection with the Services; and (v) this Agreement and the parties' rights and obligations hereunder;
“Intellectual Property Rights” shall include but is not limited to any patent, utility innovation, copyright, design right, trade mark, service mark, trade dress, trade name, goodwill, geographical indication, layout-design of integrated circuit, know-how, confidential information, trade secret, any application (whether pending, in process or issued) for any of the foregoing, and any other industrial, intellectual property or protected right similar to the foregoing (whether registered, registrable or unregistered) in any country and in any form, media, or technology; whether now known or later developed;
“Password” means your security code for accessing and using the Services;
“Services” means the online services provided by Company via the Website which may include chat rooms, messages boards, bulletin boards, blog space and online forums and such other services, functions or facilities as determined by the Company from time to time made available or accessible to participants/users via the Website;
“Software” means the BizEbuddy software applications pre-installed or pre-loaded onto the Computer which enables you to inter alia access and use the Services;
“Third Party Manufacturer/Licensor” is as defined in Clause 5.1;
“Third Party Services” means any online services provided by third parties in conjunction with the Services;
“Third Party Software” means software applications developed and/or owned by third parties that are pre-installed or pre-loaded onto the Computer and which are subject to such terms and conditions of use/licence terms and conditions between you and such third party and for avoidance of doubt shall include without limitation the pre-installed operating system but shall exclude the Software;
“Username” means your user identification name for accessing and using the Services;
“User’s Intellectual Property” is as defined in Clause 10.3 hereof; and
“Website” means Company’s BizEbuddy website located at URL www.bizebuddy.com or any subsequent URL which may replace it.
1.2 In this Agreement:
1.2.1 a reference to a statute or statutory provision shall be construed as a reference to that statute or provision as from time to time modified or re-enacted (whether before or after the date hereof) and to any repealed statute or statutory provision which it re-enacts (whether with or without modification save to the extent that the liabilities of any party hereunder would solely by reason thereof be increased or extended);
1.2.2 unless the context otherwise requires words in the singular include the plural, and vice versa; words importing any gender include all genders; and a reference to a person includes a reference to a body corporate and to an unincorporated body of persons;
1.2.3 a reference to a Clause is to a Clause of or to this Agreement;
1.2.4 the headings are for convenience only and do not affect interpretation; and
1.2.5 no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.
PART B – SOFTWARE
2. Licence Grant
2.1 Subject to the terms and conditions of this Agreement, Company agrees to grant you during the term of this Agreement, a non-exclusive, non-transferable and personal licence to access and use the Software on the Computer.
2.2 You will be given one (1) copy of the Accompanying Materials and you shall not be entitled to make any copies of such Accompanying Materials.
2.3 You acknowledge and agree that there is no transfer of title or ownership of the Software (including the Accompanying Materials) to you.
3. Software’s Limitation of Use
3.1 You may only access and use the Software:
3.1.1 on the Computer and no other computer. You are not allowed to transfer the Software from the Computer to another computer without Company’s prior consent in writing;
3.1.2 in accordance with the normal operating procedures notified to you by Company or otherwise contained in the Accompanying Materials; and
3.1.3 solely in connection with and for the purposes of accessing and using the Services and for no other purpose whatsoever.
3.2 You agree that you shall not or allow others to do any of the following:-
3.2.1 sell, lease, license, sublicense or otherwise commercially exploit the Software or Accompanying Materials or any part thereof;
3.2.2 decompile, disassemble, reverse assemble, reverse compile, reverse engineer or directly or indirectly allow or cause others to decompile, disassemble, reverse assemble, reverse compile or reverse engineer the whole or any part of the Software;
3.2.3 write or develop similar or derivative software, applications or other computer programs based on the Software or the Accompanying Materials or any of the Company’s Confidential Information or part thereof;
3.2.4 copy, alter, modify or reproduce the Software without Company’s prior written consent;
3.2.5 merge the Software with any other software, application or computer program without Company’s prior written consent; or
3.2.6 use the Software in any other manner and for any other purpose save as expressly allowed under this Agreement.
3.3 The Accompanying Materials are subject to the same restrictions on use, copying and modification as are imposed in respect of the Software under this Agreement and shall not be used by you except to assist in the normal access and use of the Software.
3.4 In addition and without prejudice to any other rights or remedies available to Company under this Agreement or at law, any breach of Clause 3.2, 3.3 or unauthorised use, alteration, modification, reproduction, publication, disclosure or transfer of the Software will entitle Company to any available equitable remedy against you, including injunctive relief.
4. Limited Warranties on Software and Compulsory New Releases
Limited Warranties on Software
4.1 During the term of this Agreement, Company warrants that the Software will perform substantially in accordance with the specifications in the Accompanying Materials.
4.2 Except as specifically provided in this Agreement and to the greatest extent permitted by law:
4.2.1 Company makes no and expressly excludes all and any warranties, representations, guarantees, inducements or endorsements, whether express or implied, oral or written, regarding or relating to the Software and the Accompanying Materials or the use, performance or operation of any of the foregoing and Company specifically disclaims all implied warranties of merchantability and fitness for a particular purpose with respect to the Software or the Accompanying Materials or the use or operation of any of the foregoing; and
4.2.2 Without limiting the generality of Clause 4.2.1, Company does not warrant that the functions contained in the Software will meet your requirements or that the use, access or operation of the Software will be uninterrupted or error free.
4.3 If the Software does not perform as warranted under Clause 4.1, Company shall as soon as reasonably practicable use its best endeavours to correct the Software, or if, in Company’s opinion, correction is not reasonably possible, replace such Software free of charge. You acknowledge and agree that this Clause 4.3 sets out your sole and exclusive remedies for breach of warranty.
4.4 Notwithstanding the foregoing, Company will not be liable to correct any defect in the Software if the defect:
4.4.1 does not result in the performance of the Software significantly deviating from the operating specifications in the Accompanying Materials;
4.4.2 is the result of alterations, revisions, variations, translations, customisations or modifications to the Software not authorised by Company;
4.4.3 is the result of use of the Software in combination with computer, equipment, software programs or services not authorised by Company;
4.4.4 is the result of use of computer programs not licensed by Company to you;
4.4.5 is the result of any fault of the Computer and/or Third Party Software;
4.4.6 is the result of improper use or use other than in the operating environment recommended by Company or other than in accordance with Company’s directions or the Accompanying Materials; and
4.4.7 is the result of or related to a failure on your part to meet your obligations or comply with the provisions under this Agreement.
4.5 If you so request, Company may at its option (but shall not be obliged to) rectify or correct the defects referred to in Clause 4.4 subject to your payment of additional fees/charges to Company.
Compulsory New Releases
4.6 Company may substitute or update the Software with a computer program which provides functions equal to or better than the Software at no additional charge to you at such time when Company shall deem fit. The manner of substitution or update shall be determined by Company at its sole discretion and you shall cooperate with Company and comply with all of the Company’s instructions and directions in this regard.
4.7 Where such substitution or update is made:
4.7.1 this Agreement will continue to apply in all respects to the substituted or updated computer program and that computer program shall be deemed to be the Software for the purpose of this Agreement; and
4.7.2 at the election of Company, Company shall be entitled to remove or you shall return to Company the original Software or otherwise deal with the same in accordance with Company’s directions.
4.8 Nothing herein shall impose an obligation on Company to provide you with updates, upgrades or new releases.
5. Computer and Third Party Software
5.1 You acknowledge and agree that the Computer and Third Party Software is manufactured, developed and/or licensed by a third party (“Third Party Manufacturer/Licensor”) and subject to the standard warranties or guarantees (if any) given by the said Third Party Manufacturer/Licensor.
5.2 Notwithstanding anything to the contrary and to the greatest extent permitted by law, Company makes no and expressly excludes all and any warranties, representations, guarantees, inducements or endorsements, whether express or implied, oral or written, of any kind whatsoever regarding or relating to the Computer and/or the Third Party Software or the use, performance or operation thereof, including without limitation, all implied warranties of merchantability, non-infringement and fitness for a particular purpose with respect to the Computer and/or the Third Party Software or the use or operation thereof.
5.3 Notwithstanding anything to the contrary and to the greatest extent permitted by law, in no event shall Company be liable to you or any third party for any costs, expenses, losses and/or damages of any kind whatsoever (including without limitation, loss of profits, income or goodwill, loss of business, loss, destruction or corruption of data or communications, loss of anticipated revenue or savings or economic loss, or special, direct, incidental, indirect, exemplary, punitive or consequential damages) howsoever caused whether in contract, tort, negligence or under any theory of liability, which may be suffered or incurred or which may arise directly or indirectly from the Computer and/or the Third Party Software or the use or operation thereof.
5.4 You shall at all times comply with any terms and conditions governing the access and/or use of the Computer and/or Third Party Software. You acknowledge and agree that any complaints or claims for defects, bugs, deficiencies, problems, malfunctions and/or faults of any kind whatsoever in relation to the Computer and/or the Third Party Software shall be brought directly to and against the relevant Third Party Manufacturer/Licensor.
5.5 You agree to resolve any proceeding, claim or dispute arising in respect of the Computer and/or Third Party Software directly with the Third Party Manufacturer/Licensor and not through Company and you further undertake not to enjoin Company in any such proceedings, claim or dispute with the Third Party Manufacturer/Licensor. Company will not be responsible or liable for any dispute arising between you and the Third Party Manufacturer/Licensor whether relating to the Computer and/or Third Party Software or otherwise.
PART C - SERVICES
6. Access and Use of the Services
6.1 Company will use its best endeavours to provide the Services to you subject to your (i) registration with Company in accordance with such application and registration procedures provided in the Website; (ii) compliance of the terms and conditions under this Agreement and the Website; and (iii) where applicable, payment of the relevant subscription/service fees and/or charges.
6.2 You hereby warrant that:-
6.2.1 your profile and information are true, accurate, current and complete in all respects, including without limitation, full name and contact details.
6.2.2 you will notify Company immediately of any changes to the profile and information referred to in Clause 6.2.1. Company will not be responsible for any failure to perform under this Agreement where such failure is attributable to your breach of Clause 6.2.1 above or otherwise your failure to notify Company of any changes to your profile and/or information; and
6.2.3 you shall not impersonate any other person or entity or use a false name that you are not authorised to use.
6.3 Company reserves the right at any time (whether with or without notice) to amend, add to, terminate, suspend, withdraw or revise any or all of the Services and your continued access and use of the Services will amount to your acceptance of such amendment, addition or revision to the Services.
6.4 Some or all of the Services may not be available at certain times due to the maintenance and/or malfunction of the same and/or reasons beyond the control of Company. Notwithstanding anything to the contrary, Company makes no warranty that the Services will be available at all times.
6.5 Third Party Services may be made available to you from time to time subject to your (i) compliance of the terms and conditions governing the access and/or use of such Third Party Services; and (ii) where applicable, payment of the relevant subscription/service fees and/or charges. You acknowledge and agree that the Third Party Services are provided by a third party and accordingly, the provisions in Clause 5 shall apply mutatis mutandis to such Third Party Services.
7. Login Process
7.1 In order to access and use the Services, you will be required to enter your Username and Password during the login process in accordance with the applicable prompts, instructions and procedures.
7.2 You shall immediately notify Company of any unauthorised use of your Username and/or Password, or any other breach of security. You are fully responsible for all activities that occur in connection with your Username and/or Password.
7.3 You shall adhere to any and all security guidelines, instructions and/or directions issued by Company from time to time relating to the access and/or use of the Services, including but not limited to those specified below:-
7.3.1 you shall keep your Username and Password confidential at all times;
7.3.2 your Username and Password are not transferable;
7.3.3 your Username and/or Password must be changed if there is any indication that access security has been compromised (e.g. the Password is known by an unauthorised person) and you must immediately notify Company of such security compromise;
7.3.4 weak combinations for the Password should not be used. Examples of a weak combination include name of user, or any word found in a dictionary;
7.3.5 you shall ensure that you do not leave the Computer unattended whilst you are online to the Website and/or Services and further you must log out from the Computer after completing your access and use of the Services; and
7.3.6 you are responsible for your own PC anti-virus and security measures to prevent unauthorised access to your information, instructions, transactions and accounts via the Website and/or Services.
7.4 You acknowledge and agree that use of your Username and Password are adequate identification of you. You hereby authorise Company to act on your instruction(s) given via the Website and/or Services and using the aforesaid Username and Password, without having to obtain written or other confirmation from you even if those instruction(s) are not actually given or authorised by you. All such instruction(s) shall be binding on you once transmitted to Company regardless of whether the instruction(s) are issued by you or by some other person, whether authorised or not. Company will not be liable for any loss or damage suffered or incurred by you as a result of any misuse of your account and/or unauthorised instructions effected using your Username and Password and any other security information required by the Website and/or Services.
8. Restrictions on Use of the Services
8.1 Any and all materials, contents and information (including but not limited to text, video and/or audio content) that you submit or post on, to or through the Website and/or Services must be related to multi-level marketing or Company or its business or such other topics or subject-matter which are approved in writing by Company at its sole and absolute discretion.
8.2 In accessing and/or using the Services and/or Website, you agree as follows:-
8.2.1 you must not modify, copy, republish, reproduce, distribute, transmit, use or otherwise deal with the Services without first obtaining Company’s prior written approval or unless where expressly permitted under this Agreement;
8.2.2 you must not use the Services in any manner which could damage, disable, corrupt or impair the Services or the hardware and software system, security protocols, information/service provider networks or other operations;
8.2.3 you must use the Services in a manner, which does not infringe the rights of, or restrict or inhibit the use and enjoyment of the Services by other members/users/participants;
8.2.4 you must be courteous to persons whom you may be interacting with and to anyone who is the subject of your posting;
8.2.5 you must not use the Services and/or Website to engage in any illegal or unlawful activity, any civil wrong or tort or any other activity that may cause loss or damage to Company and/ or another person;
8.2.6 your contributions through the Services must be civil, tasteful and relevant;
8.2.7 you must respect the privacy and views of other members/users/participants;
8.2.8 you must not post, send or transmit any unauthorised materials, content or information on, to or through the Services and/or Website including without limitation, materials, content or information that:-
(i) is unlawful, vulgar, obscene, libellous, in breach of privacy, abusive, inaccurate, misleading, defamatory, harmful, false, scandalous, offensive, disparaging, profane, pornographic in nature, sexually orientated or otherwise objectionable;
(ii) may infringe or breach any Intellectual Property Right of the Company or any third party;
(iii) may contravene any applicable law, regulation, notice, directive, code or standard;(iv) contains elements or expressions of politics, gossip, bigotry, racism, hatred or are ethnically offensive;
(v) constitutes “junkmail”, “spam”, “chain letters” or any other form of unauthorised materials; or
(vi) contains software viruses or any file or program that may interrupt, disable, corrupt or impair the Services, Website or the hardware and software system, security protocols, information/service provider networks or other operations;
8.2.9 you must not interrupt the Services by flooding the same with the same or very similar materials, content or information;
8.2.10 you must not use the Services for any unlawful purposes;
8.2.11 you must not impersonate another person;
8.2.12 you must not allow another person to use your identification to post or view comments;
8.2.13 you must not copy, download, display, post, transmit, use or reproduce in whole or part in any form or by any means for any purposes the contents, information or materials from the Services, including contents, materials, information submitted or posted by other members/users/participants; and
8.2.14 unless expressly permitted under this Agreement or by Company in writing, you must not advertise third party website/services/products or otherwise use the Services for commercial purposes of any kind. If Company permits you to advertise third party websites/services/products, Company reserves the right to charge you fees for the same.
8.3 Company reserves the right (but is not obliged) to remove, edit or delete any materials, content and/or information posted or submitted by you or anyone else on, to or through the Website and/or Services at its sole discretion, at any time without notice and shall not be liable to you or anyone for such removal, editing or deletion.
9. Limited Warranties on Services
9.1 The Services are provided to you on an “as is” and “as available” basis only. Except as specifically provided in this Agreement and to the greatest extent permitted by law, Company makes no and expressly excludes all and any warranties, representations, guarantees, inducements or endorsements, whether express or implied, oral or written, including without limitation merchantability and fitness for a particular purpose, accuracy, quality, precision, non-infringement, use, access, security, operation, availability, continuity or non-interruption, adequacy, timeliness and/or completeness regarding or relating to the Services and/or any other service, information, specification, description, material or resources contained in the Website or made available to you under or pursuant to the Services; or the performance, use and operation of any of the foregoing.
9.2 Notwithstanding anything to the contrary, Company does not represent, warrant, guarantee or endorse any materials, content, information and/or opinions submitted or posted by any member/user/participant on, to or through the Website and/or Services (including without limitation, the reliability, accuracy or truthfulness thereof). ANY RELIANCE ON MATERIALS, CONTENT, INFORMATION AND/OR OPINIONS SO POSTED ON, TO OR THROUGH THE WEBSITE AND/OR SERVICES IS ENTIRELY AT YOUR OWN RISK.
PART D – GENERAL TERMS AND CONDITIONS
10. Intellectual Property Rights
10.1 You acknowledge and agree that any and all Intellectual Property Rights subsisting in and to:-
10.1.1 the Software and Accompanying Materials;
10.1.2 the Services and Website (including without limitation all content, product and company names, logos, images, text, materials, specifications, description, information and resources contained therein), save for any User’s Intellectual Property;
10.1.3 any trade marks and service marks (whether registered, unregistered or pending registration) used in connection with the Software, Accompanying Materials, Services and Website;
10.1.4 all other materials and documentation provided to you under this Agreement or which you have access to by virtue of this Agreement; are licensed to and/or are owned by Company (or its designee).
10.2 Save for the licence to access and use the Software as well as right to access and use the Services under this Agreement, nothing in this Agreement shall be construed as granting you or any person any rights and/or license to use the foregoing proprietary rights referred to in Clause 10.1 and such use is therefore strictly prohibited.
10.3 You agree to grant Company a worldwide, royalty-free, perpetual, non-exclusive and irrevocable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any materials, contents and information (in whole or in part) submitted or posted by you on, to or through the Website and/or Services (“User’s Intellectual Property”) and/or to incorporate the User’s Intellectual Property in other works in any form, media or technology now known or hereafter developed.
10.4 Notwithstanding anything to the contrary, if you are engaged and/or selected by Company as a speaker to deliver talks, presentations and/or speeches for the BizEbuddy project or otherwise to provide or give any testimonies, talks, presentations and speeches that will be featured in any form or format whatsoever on the Website or as part of the Services, then any and all Intellectual Property Rights subsisting in and to such testimonies, talks, presentations and speeches (including any and all Recordings thereof) shall belong to Company (or its designee). For avoidance of doubt, the term “User’s Intellectual Property” (as defined in Clause 10.3) shall exclude all and any intellectual property or other proprietary rights referred to in this Clause 10.4. For avoidance of doubt, the term “Recordings” means the filming, capturing, fixing, videotaping, broadcasting and/or sound recording of the testimonies, talks, presentations and/or speeches either in whole or in part (including surplus or rejected material or so-called ‘out-takes’ and any so-called ‘behind the scenes’ activities, or for publicity and promotional purposes) and shall also include the works and/or production of such recordings.
11. Confidentiality
11.1 Except as otherwise expressly provided in this Agreement, you agree that any and all Confidential Information will be and will be deemed to have been received in confidence and will be used only for purposes of this Agreement. No such Confidential Information will be disclosed by you without the prior written consent of Company.
11.2 The above Clause 11.1 shall not apply to information which (i) is already known by you without an obligation of confidentiality other than under this Agreement; (ii) is publicly known or becomes publicly known through no unauthorised act of yours; or (iii) is independently developed without use of the Confidential Information. If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, such Confidential Information may be disclosed pursuant to such requirement so long as you provide Company with timely prior notice of such requirement and fully cooperate with Company in an effort to limit the nature and scope of such required disclosure.
11.3 Upon the expiration or termination of this Agreement for any reason, all documented Confidential Information including any part thereof (and all copies) in any media whatsoever (including without limitation, computer disk, CD-ROM, documentation or electronic form) will at the election of Company, be returned to Company or will be destroyed, with written certification being given by you to Company.
12. Liability
12.1 Notwithstanding anything to the contrary and to the greatest extent permitted by law, in no event shall Company be liable to you or any third party for any (i) loss of profits, income or goodwill, loss of business, loss, destruction or corruption of data or communications, loss of anticipated revenue or savings or economic loss, or (ii) special, incidental, indirect, exemplary, punitive or consequential damages; howsoever caused whether in contract, tort, negligence or under any theory of liability, which may be suffered or incurred or which may arise directly or indirectly from the Software, Accompanying Materials, the Services and/or any other service, information, specification, description, material or resources contained in the Website or made available to you under or pursuant to the Services and/or any act, omission, default or breach or failure on the part of Company to comply with its obligations under this Agreement; even if Company has been advised of the possibility of such damages or losses in advance, and all such damages or losses are expressly disclaimed.
12.2 If Company is found liable by a court of competent jurisdiction or tribunal under or pursuant to this Agreement or howsoever arising in connection with or pursuant to the Software, Accompanying Materials, the Services and/or any other service, information, specification, description, material or resources contained in the Website or made available to you under or pursuant to the Services, Company’s liability to you for any losses and damages which are attributable to the fault of Company and/or are the result of a failure to perform or breach by Company of any provision of this Agreement and/or any acts or omissions of Company (whether negligent or otherwise), shall not exceed, for all claims, actions and causes of action of every kind and nature (including without limitation, breach of contract, tort or negligence), an amount equivalent to Ringgit Malaysia Two Thousand (RM2,000.00) only.
12.3 You agree to indemnify, defend and hold Company harmless against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including legal fees and expenses on a solicitor and client basis) and other liabilities whatsoever and howsoever caused that may arise or be incurred by Company arising from or in connection with your (i) access and use of the Software, Accompanying Materials, Services and/or any other service, information, specification, description, material or resources contained in the Website or made available to you under or pursuant to the Services; or (ii) any materials, contents and/or information submitted, sent, transmitted or posted by you on, to or through the Services and/or Website; or (iii) your failure to perform or breach of any provision of this Agreement (including without limitation, a breach of Clauses 3 or 8 hereof); or (iv) your access and/or use of the Computer, Third Party Software and/or Third Party Services or breach or non-performance of any terms and conditions imposed in respect of the Computer, Third Party Software and/or Third Party Services and/or (v) your faults, acts or omissions (whether negligent or otherwise).
12.4 If any provision of this Agreement is held to be invalid by any law, rule, order or regulation of the Government or by the final determination of a Court, such invalidity shall not affect the enforceability of any other provisions of this Agreement. Where any Act of Parliament or regulation implies in this Agreement any term, condition or warranty, and that Act or regulation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement. However Company’s entire liability and your exclusive remedy for any breach of such term, condition or warranty shall be limited, at the option of Company, to any one or more of the following:
12.4.1 if the breach relates to goods:
(i) the replacement of the goods, its parts or the supply of equivalent goods;
(ii) using reasonable endeavours to repair such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
12.4.2 if the breach relates to services:
(i) using reasonable endeavours to supply the services again; or(ii) the payment of the cost of having the services supplied again.
13. Termination
13.1 Without limiting the generality of any other Clause in this Agreement, Company may terminate this Agreement immediately by notice in writing if:
13.1.1 you breach or fail to observe or perform any provision of this Agreement or any of your obligations, warranties, representations and/or undertakings under this Agreement and such breach or failure, if capable of remedy, is not remedied, or, if not capable of remedy, is not waived, in either case within fourteen (14) days after written notification thereof by Company.
13.1.2 you dispose of the Computer and/or Software;
13.1.3 notwithstanding Clause 13.1.1 above, you breach Clauses 3 or 8 of this Agreement;
13.1.4 you, being a natural person, die or Company is of the view that your position is or has become unsound and/or your ability to comply with this Agreement is or has become impaired;
13.1.5 a petition is presented against you for bankruptcy or you are declared bankrupt;
13.1.6 you engage in any conduct deemed by Company to be prejudicial to Company’s rights, business or interests;
13.1.7 you commit an act of dishonesty or are charged with or convicted of an offence or are the subject of any investigation by any governmental authority; and/or
13.1.8 you cease to become a member of Company (whether as an Internet Business Partner, Global Business Entrepreneur or other type/category of membership with the Company) or your membership with Company expires or is terminated for any reason whatsoever.
13.2 This Agreement shall not be terminated by either party save in the manner expressly provided in this Agreement.
13.3 In addition to any other consequences of termination under this Agreement, upon termination of this Agreement for any reason, the following provisions shall apply:
13.3.1 notwithstanding anything to the contrary, you shall immediately cease to have any licence or right to access and use the Software, Accompanying Materials, Services and/or any other service, information, specification, description, material or resources contained in the Website or made available to you under or pursuant to the Services;
13.3.2 you shall immediately at the election of Company either:
(i) return to Company and/or destroy (with written certification given to Company) the Software and Accompanying Materials (and all copies, if any) and delete the same from the Computer, any computer, word processor or other device; or
(ii) otherwise deal with the Software and Accompanying Materials (or part thereof) in accordance with the Company’s direction.
13.3.3 notwithstanding Clause 13.3.2, Company shall be entitled to enter into any premises where the Computer and/or Software is kept, to remove the Software from the Computer (and any copies thereof) and repossess copy(ies) of the Accompanying Materials;
13.3.4 Company shall be entitled to charge a reasonable sum for work performed in respect of which no sum has been previously charged;
13.3.5 Company shall be regarded as discharged from any further obligations under this Agreement; and
13.3.6 Company shall be entitled to pursue any additional or alternative remedies provided by law or equity.
14. Force Majeure
14.1 Company shall not be in breach of its obligations under this Agreement if it is unable to perform or fulfill any of its obligations hereunder as a result of the occurrence of an event of Force Majeure.
14.2 An event of “Force Majeure” shall mean an event not within the reasonable control of Company, which Company is unable to prevent, avoid or remove and shall include (i) war, hostilities (whether war be declared or not), invasion, act of foreign enemies, rebellion, revolution, insurrection, military or usurped power, civil war, terrorism; (ii) natural catastrophe including but not limited to earthquakes, floods, subsidence, lightning, fire and exceptionally inclement weather; (iii) burglary, theft, riot and disorders, criminal damages, sabotage, strike, lockout, revocation of work permits, shipping delays, labour unrest or other industrial disturbances, and/or (iv) any Trojan horses, worms, viruses or other disabling or disruptive programs or devices.
14.3 Company shall notify you in writing of the occurrence of any event of Force Majeure applicable to its obligations under this Agreement and its consequences. If Company considers the event of Force Majeure to be of such severity or to be continuing for an aggregate period of three (3) months such that Company is unable to perform any of its obligations hereunder, this Agreement may be terminated by Company by notice in writing to you, which termination may take effect immediately or on the date specified in the notice of termination.
15. Miscellaneous
15.1 Assignment - This Agreement or any rights, licence, interests and benefits hereunder shall not be assigned, novated, transferred or dealt with in any way by you (whether by assignment, sub-licensing or otherwise) without Company’s prior written consent. Company may assign, transfer or deal with this Agreement or any rights, licence, interests and benefits hereunder by written notice to you.
15.2 Notices - Unless otherwise specifically provided under this Agreement or where otherwise notified by Company to you from time to time, any and all notices, instructions or other communications to be given hereunder by you to Company shall be in writing, and sent by way of electronic mail, registered post or facsimile and shall be effective only upon the receipt by you of Company’s acknowledgment of receipt of the said notice.
Unless otherwise specifically provided under this Agreement or where otherwise notified by Company to you from time to time, you accept and agree to the manner in which Company will give notice to you, at Company’s sole discretion, in any one of the following methods:
(a) by ordinary or registered post to your last known address in accordance with Company’s records; or
(b) by facsimile to your last known facsimile number in accordance with Company’s records; or
(c) by electronic mail to your last known electronic mail address in accordance with Company’s records; or
(d) by any other manner of notification at Company’s discretion from time to time.
You shall be deemed to be in receipt of a notice from Company:
(aa) if the notice is delivered by ordinary or registered post, three (3) days after date of posting; or
(bb) if the notice is sent by facsimile machine, upon completion of transmission as evidenced by a fax confirmation slip; or
(cc) if the notice is sent by electronic mail, upon the date and time of sending.
15.3 Waiver - No failure or delay on the part of any party in exercising any rights or remedies under this Agreement at anytime or for any period of time nor any knowledge or acquiescence by any party of, or in breach of any provision of this Agreement shall operate as or be deemed to be a waiver thereof nor shall a waiver by that party of any breach constitute a continuing waiver in respect of any subsequent or continuing breach. A provision of or right or remedy under this Agreement may not be waived except in writing signed by the party or parties to be bound.
15.4 Taxes - You agree to pay and to reimburse Company immediately on request if Company is required to pay any taxes, duties, fees or other government levies or charges which may be imposed on or in respect of the Computer, Third Party Software, Software, Services, Third Party Services or any services or goods provided or supplied by Company to you under this Agreement.
15.5 Governing Law - This Agreement and all rights and obligations of the parties hereto shall be governed and construed in accordance with the laws of Malaysia. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the Courts in Malaysia but Company is at liberty to proceed against you in the Courts of any other country where jurisdiction may be established (including the jurisdiction where you reside or your place of business is located).
15.6 Whole Agreement - This Agreement contains the whole agreement between the parties and supersedes any prior written or oral agreement between them in relation to its subject matter and parties confirm that they have not entered into this Agreement on the basis of any representations that are not expressly incorporated into this Agreement.
15.7 Severability - If any provision of this Agreement (or part thereof) is held to be illegal or invalid under present or future laws or regulations effective and applicable during the continuance of this Agreement, such provision (or part thereof) shall be fully severable and this Agreement shall be construed as if such illegal or invalid provision (or part thereof) had never comprised a part of this Agreement and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal or invalid provision (or part thereof) or by its severance from this Agreement.
15.8 Survival - The provisions in Clauses 5, 9, 10, 11, 12.1, 12.2, 12.3 and 13.3 shall survive the termination or expiration of this Agreement for any reason.
15.9 Company’s Rights - Any express statement of a right of Company under this Agreement is without prejudice to any other right of Company expressed in this Agreement or arising at law.
15.10 Successors Bound - Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.
15.11 Amendments - Company reserves the right at any time to amend or vary this Agreement and it is your responsibility to check the Website from time to time for any amendments or variations. In any event, your continued access and use of the Software, Accompanying Materials, Services and/or Website will amount to your acceptance of such amendment or variation to this Agreement.
