THIS AGREEMENT is made on the 9th of May 2022
These Terms and Conditions (herein referenced as “Terms”) govern your access to, and the use
of www.theloacentre.com and any related website or operated by The LOA Centre (M) Sdn
Bhd, herein referenced as “The Centre”, “us”, “we” or “our” (who owns The LOA Centre
website – here in referenced as “Site”) and the use of, and registration with The Centre’s Service
(defined below) through the Site, a Website.
These Terms and Conditions are between The Centre and you, either individually, or on behalf of your employer or any other entity which you represent (“your” “customer” or “you”). In case you represent your employer or another entity, you hereby represent that (i) you have full legal authority to bind your employer or such entity (as applicable) to these Terms; and (ii) after reading and understanding these Terms, you agree to these Terms on behalf of your employer or such entity (as the case may be).
Please note that you are deemed as an authorized representative of your employer or an entity (as applicable); (i) if you are using your employer or an entity’s email address in registering into the service; and (ii) if you are an admin (as defined below).
Please read these Terms and Conditions carefully before using The Centre’s site. By accessing and using The Centre’s Website, you are indicating your acknowledgment and acceptance of these Terms and Conditions including any additional terms and policies referenced herein, available on the website. These Terms and Conditions are subject to change by The Centre at any time at our sole discretion (effective date as defined above). Your use of this Website, constitutes your acknowledgment and acceptance of these Terms and Conditions and any and all amendments thereof.
You acknowledge that these terms are binding, and you affirm and signify your consent to these terms, by either : (i) clicking on a button or checking a checkbox for the acceptance of these terms; or (ii) registering to, using or accessing the service, or site, whichever is earlier (The “Effective Date”).
If you do not agree to comply with, and be bound by, these terms or do not have authority to bind your employer or any other entity (as applicable), please do not accept these terms or access or use the service or the site.
1.1 Our Service
The LOA Centre platform is a Centre that strives towards greatness by working with and enhancing human performance through positive mindset, behavioral shifts and We equip our customers with the ability to communicate better, build ownership and accountability of the choices made and all in all, becoming a more compassionate human being. Specific Terms may apply to you or to some of the service, such specific terms are incorporated herein by reference and form an integral part hereof.
1.2 Modification or Discontinuation of the Service
We may add, modify or discontinue any feature, functionality or any other tool, within the Service and/or Site, at our own discretion and without further notice, however, if we make any material adverse change in the core functionality of the Service, then we will notify you by posting an announcement on the Site and/or via the Service or by sending you an email.
1.3 No Contigency on Future Releases and Improvements
You hereby acknowledge that your purchase of the Service and/or Third Party Services (as defined below) hereunder are not contingent on the delivery by us of any future release of any functionality or feature, including without limitation, the continuance of : (i) a certain Service beyond its current Subscription Term; or (ii) Third Party Services, or dependent on any public comments we make, orally or in writing, regarding any future functionality of feature.
1.4 Ability to Accept Terms
If you, access and use the Site and/or the Service, you represent and warrant that you are at least 17 years old. The Site and/or Service are only intended for individuals aged seventeen (17) years or older. We reserve the right to request proof of age at any stage so that we can verify compliance with this paragraph.
1.5 Additional Services
Customer may choose to purchase additional services to be provided by The Centre, subject to The Centre’s Additional Service Terms.
2.1 Customer Data
Customer data is any data, text, reports, personal information, or any other content, that is uploaded or submitted, transmitted or otherwise made available, to or through the Service by you and is processed by us on Customer’s behalf (the “Customer Data”). For the avoidance of doubt, Anonymous Information and generic (as defined below in Section 4.4) is not regarded as Customer Data. Customer retains all rights, title, interest and control, in and to the Customer Data, in the form submitted to the Service. Subject to these Terms, Customers grants us a worldwide, royalty-free, limited license to access, use, process, copy, distribute, perform, export, and display the Customer Data and solely to the extent that reformatting Customer Data for display in the Service constitutes a modifications or derivative works, the foregoing license also includes the right to make modifications and derivative works. The afore-mentioned license is hereby granted solely: (i) to maintain and provide you the Service; (ii) to prevent or address technical or security issues and resolve support requests; (iii) to investigate when we have a good faith belief, or have received a complaint alleging, that such Customer Data is in violation of these Terms; (iv) to comply with a valid legal subpoena, request, or other lawful process; and (v) as expressly permitted in writing by you.
2.2 Responsibility for Customer Data Compliance
You represent and warrant that: (i) you have or have obtained all rights, licenses, consents, permissions, power and/or authority, necessary to grant the rights granted herein, for any Customer Data that you submit, post or display on or through the Service; (ii) the Customer Data is in compliance with, and subject to, our Acceptable User Policy; and (iii) the Customer Data you submit, your use of such Customer Data, and our use of such Customer data, as set forth in these Terms, do not and shall not (a) infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary or privacy, data protection or publicity rights of any third party; (b) violate any applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer and exportation (the “Laws”); (c) violate any of your or third party’s policies and terms governing the forth in Section 5, we assume no responsibility or liability for Customer Data, and you shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it. It is hereby clarified that The Centre shall not monitor and/or moderate the Customer Data and there shall be no claim against The Centre of not acting so.
2.3 No Sensitive Data
You shall not submit to the Service any data that is protected under a special legislation and required a unique treatment, including, without limitations, (i) categories of data enumerated in Personal Data Protection Act 2010 or any similar legislation or regulation in other jurisdiction; (ii) credit, debit or other payment card data subject to Payment Card Industry Data Security (PCI DSS) or any other credit card schemes.
3.1 Our Intellectual Property
The Service and Site, inclusive of materials, such as software, application programming interface, design, text, editorial materials, informational text, photographs, illustrations, audio clips, video clips, artwork and other graphic materials, and names, logos, trademarks and services marks (excluding Customer Data), any and all related or underlying technology and any modifications, enhancements or derivative works of the foregoing (collectively, “The Centre Materials”), are the property of The Centre and its licensors, and may be protected by applicable copyright or other intellectual property laws and treaties. As between you and The Centre, The Centre retains all rights, title and interest, including all intellectual property rights, in and to The Centre Materials.
3.2 Customer Reference
Customer acknowledges and accepts that The Centre has the right to use Customer’s name and logo to identify Customer as a Customer of The Centre, on The Centre’s website. Marketing materials or otherwise by public announcements. Customer may revoke such right, at any time, by contacting firstname.lastname@example.org.
3.3 Your Access and Use Rights
Subject to the terms and conditions of these Terms, and your compliance thereof, and specifically in strict compliance with our Acceptable User Policy, we grant you a limited, worldwide, non-exclusive, non-transferable right to access and use the Service and Site, during the applicable Subscription Term, solely for Customer’s internal purposes.
3.4 Use Restrictions
Except as expressly permitted in these Terms, you may not, and shall not allow any third party to: (i) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, resell, display, transmit, broadcast, transfer or distribute any portion of the Service or the Site to any third party, including, but not limited to your affiliates, or use the Service in any service bureau arrangement; (ii) circumvent, disable or otherwise interfere with securityrelated features of the Site or Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service or Site; (iii) reverse engineer, decompile or disassemble, decrypt or, attempt to derive the source code of, the Service or Site, or any components thereof; (iv) copy, modify, translate, patch, improve, alter, change or create any derivative works of the Service or Site, or any part thereof; (v) take any action that imposes or may impose (at The Centre’s sole discretion) an unreasonable or disproportionately large load on The Centre’s infrastructure or infrastructure which supports the Site or Service; (vi) interfere or attempt to interfere with the integrity or proper working of the Service or Site, or any related activities; (vii) remove, deface, obscure, or alter The Centre’s or any third party’s identification, attribution or copyright notices, trademarks, or other proprietary rights affixed to or provided as part of the Service or Site, or use or display logos of the Service or Site without The Centre’s prior written approval and consent; (viii) use the Service or Site for competitive purposes, including to develop or enhance a competing service or product; or (ix) encourage or assist any third party to do any of the foregoing.
As a Customer of the Service and/or Site, you may provide suggestions, comments, features, requests or other feedbacks to any of The Centre Materials, The Centre’s Service, and/or the Site (“Feedback”). Such Feedback is deemed an integral part of The Centre Materials, and as such, it is the sole property of The Centre without restrictions or limitations on use of any kind. The Centre may either implement or reject such Feedback, without any restriction or obligation of any kind. You (i) represent and warrant that such Feedback is accurate, complete, and does not infringe on any third party rights; (ii) irrevocably assign to The Centre any right, title and interest you may have in such Feedback; and (iii) explicitly and irrevocably waive any and all claims relating to any past, present or future moral rights, artists ’rights, or any other similar rights, worldwide, in or to such Feedback.
The Centre implements reasonable security measures and procedures to assist in protecting your Customer data. You can lean more on our security measures and procedures on our Security Page, as updated from time to time.
4.3 Data Processing Agreement (“DPA”)
By using the Service, Customer also accepts our Data Processing Agreement, which governs the Processing of Personal Data (as both terms are defined in the DPA) on Customer’s behalf, where such Personal Data is subject to the Personal Data Protection Act 2010 (the “PDPA”).
4.4 Anonymous Information
Notwithstanding any other provision of these Terms, we may collect, use and publish Anonymous Information (defined below) relating to your use of the Service and/or Site, and disclose it for the purpose of providing, improving and publicizing our products and services, including the Site and Service, and for other business purposes. “Anonymous Information” means information which does not enable identification of an individual, such as aggregated and analytics information. The Centre owns all Anonymous Information collected or obtained by the Service.
5.1 Third Party Services
The Service may enable you to engage and procure certain third-party services, products, apps and tools in connection with the Service, including, without limitation, third party applications and widgets offered via our integrations offering or which you decide to connect through our API, as part of the Service (collectively, “Third Party Services”).
5.2 Independent Relationship
You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, we merely act as an intermediary platform between you and such Third Party Services, and we do not, in any way, endorse any such Third Party Services, or shall be in any way responsible or liable with respect to any such Third Party Services. Your relationship with such Third Party Services and any terms governing your payment for, and use of, such Third Party Services, including without limitation, the collection, processing and use of your data by such Third Party Services, are subject to a separate contractual arrangement between you and the provider of a Third Party Service (the “Third Party Agreement”). We are not a party to, or responsible, in any manner, for the compliance by you or by the provider of the Third-Party Service with the Third- Party Agreement.
5.3 Integration with a Third-Party Service and your Customer Data.
5.4 Use Conditions and Limitations
Both The Centre and a Third-Party Service may impose, each at its sole discretion, additional conditions or limitations on your access and use of certain Third-Party Services, including without limitation, imposing a limited quota on the number of actions or other uses (as the case may be). Such additional conditions or limitations shall be indicated wherever relevant within the Service or the Third-Party Service or otherwise notified to you.
5.5 Payment for Third Party Services
Third Party Services may be offered free of charge or for a certain fee, either charged directly by the Third-Party Service or by The Centre. Wherever the Third-Party Service requires a payment, it shall be indicated next to the offering of the Third-Party Service, unless such price is included within the Subscription Plan (as defined below) for the Service. Whenever The Centre charges Customer on behalf of itself and not as an agent on behalf of the Third-Party Service, the payment terms, including the payment of fees, renewal and refund policy, are governed by Sections 6 and 7 herein. Whenever The Centre charges Customer on behalf of the Third-Party Services, then Customer acknowledges that The Centre serves only as an intermediary role in facilitating or collecting the applicable fees and taxes from Customer, for the Third-Party Service, thus all payment related issues, including the payment of fees, renewal and refund policy, are governed by the Third-Party Agreement.
5.6 Change of Fees
Customer acknowledges that The Centre and any Third-Party Service, may change the fees for the Third-Party Service from time to time, including imposing a new charge on a Third-Party Service that was provided for free.
5.7 Discontinuation of a Third-Party Service
Each of The Centre and the Third-Party Service reserves the right to discontinue the use or suspend the availability of any Third-Party Service, for any reason and with no obligation to provide any explanation or notice. Such discontinuation may result in the inability to utilize certain features and actions of the Third-Party Service along with our Service.
5.9 Limitations of Liability
The Centre bears no responsibility and/or liability for any links or third-party services, including without limitation, such third-party service’s operability or interoperability with our service, security, accuracy, reliability, data protection and processing practices and the quality of its offerings, as well as any acts or omissions by third parties. By accessing and/or using the third-party services, you acknowledge that your access and use of the third-party services are at your sole discretion and risk, and you are solely responsible for ensuring such third-party service’s operation and practices and its respective third-party agreement, meet your needs.
6.1 Order Form
Our order form may be completed and placed in various ways, among which, an online form or in-product screens or any other mutually agreed upon offline form delivered by Customer, including via mail, email or any other electronic or physical delivery mechanism (the “Order Form”). Such Order Form will list, at the least, the Service ordered, subscription plan, term and the associated fees.
6.2 Subscription Term
The Service is provided on a subscription basis for the term specified in your Order Form, in accordance with the respective subscription plan purchased under such Order Form (the “Subscription Term” and the “Subscription Plan”, respectively, and collectively the “Subscription”).
6.3 Subscription Fees
In consideration for the provision of the Service, Customer shall pay us the applicable fees per the purchased Subscription, as set forth in the applicable Order Form (the “Subscription Fees”). Unless indicated otherwise, Subscription Fees are stated in MYR (Malaysian Ringgit). Customer hereby authorizes us, either directly or through our payment processing service, to charge such Subscription Fees via Customer’s selected payment method, upon due date. Unless expressly set forth herein, the Subscription Fees are non-cancellable and non-refundable. We reserve the right to change the Subscription Fees at any time, upon notice to Customer if such change may affect Customer’s existing subscriptions upon renewal. In the event of failure to collect the Fees owed by Customer, we may, at our sole discretion (but shall not be obligated to) retry to collect at a later time.
The Subscription Fees are exclusive of any and all taxes (including without limitation, value added tax, sales tax, use tax, excise, goods and services tax, etc.), levies, or duties, which may be imposed in respect of these Terms and the purchase or sale, of the Service hereunder (the “Taxes”), except for Taxes imposed on our income. If Customer is located in a jurisdiction which requires Customer to deduct or withhold Taxes or other amounts from any amounts due to us, please notify us, in writing, promptly and we shall join efforts to avoid any such Tax withholding, provided, however, that in any case, Customer shall bear the sole responsibility and liability to pay such Tax and such Tax should be deemed as being added on top of the Subscription Fees, payable by Customer.
6.5 Subscription Upgrade
During the Subscription Term, Customer may upgrade its Subscription Plan by either: (i) upgrading to a higher type of Subscription Plan or (ii) upgrading to a longer Subscription Term (collectively, “Subscription Upgrades”). Some Subscription Upgrades or other changes may be considered as a new purchase, hence will restart the Subscription Term and some won’t, as indicated within the Service and/or the Order Form. Upon a Subscription Upgrade, Customer will be billed for the applicable increased amount of Subscription Fees, at our then-current rates (unless indicated otherwise in an Order Form), either: (1) prorated for the remainder of the then-current Subscription Term, or (2) whenever the Subscription Term is being restarted due to the Subscription Upgrade, then the Subscription Fees already paid by Customer will be reduced from the new upgraded Subscription Fees, and the difference shall be due and payable by Customer upon the date on which the Subscription Upgrade was made.
6.6 Excessive Usage
We shall have the right, including without limitation where we, at our sole discretion, believe that Customer, have misused the Service or otherwise use the Service in an excessive manner compared to the anticipated standard use (at our sole discretion), to offer the Subscription in different pricing and/or impose additional restrictions as for the upload, storage, download and use of the Service, including, without limitation, restrictions on Third Party Services, network traffic and bandwidth, size and/or length of content, quality and/or format of content, sources of content, volume of download time, etc.
As part of registering, or submitting billing information, to the Service, Customer agrees to provide us with updated, accurate and complete billing information, and Customer authorizes us (either directly or through our affiliates, subsidiaries or other third parties) to charge, request and collect payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment method or designated banking account, and to make any inquiries that we may consider necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account (e.g., updated expiry date or card number as may be provided to us by Customer’s credit card company).
6.8 Subscription Auto-Renewal
In order to ensure that Customer will not experience any interruption or loss of services, Customer’s Subscription includes an automatic renewal option by default, according to which, unless Customer disables the auto-renewal option or cancels its Subscription prior to its expiration, the Subscription will automatically renew upon the end of the then applicable Subscription
Term, for a renewal period equal in time to the original Subscription Term (excluding extended periods) and, unless otherwise notified to Customer, at the same price (subject to applicable Tax changes and excluding any discount or other promotional offer provided for the first Subscription Term). Accordingly, unless either Customer or us cancel the Subscription prior to its expiration, we will attempt to automatically charge Customer the applicable Subscription Fees upon or immediately prior to the expiration of the then applicable Subscription Term. If Customer wishes to avoid such auto-renewal, Customer shall cancel its Subscription (or disable the auto-renewal option), prior to its expiration, at any time by contacting our Customer Service team. Except as expressly set forth in these Terms, in case a Customer cancels its Subscription, during a Subscription Term, the Subscription will not renew for an additional period, but Customer will not be refunded or credited for any unused period within the Subscription Term.
6.9 Discounts and Promotions
Unless expressly stated otherwise in a separate legally binding agreement, if Customer received a special discount or other promotional offer, Customer acknowledges that upon renewal of its Subscription, The Centre will renew such Subscription, at the full applicable Subscription Fee at the time of renewal.
Any credits that may accrue to Customer’s Account, for any reason (the “Credits”), will expire and be of no further force and effect, upon the earlier of: (i) the expiration or termination of the applicable Subscription under the Account for which such Credits were given. Unless specifically indicated otherwise, Credits may be used to pay for the Services only and not for any Third-Party Service or other payment of whatsoever kind. Whenever fees are due for any Services, accrued Credits will be first reduced against the Subscription Fees and the remainder will be charged from Customer’s respective payment method. Credits shall have no monetary value (except for the purchase of Services under the limited terms specified herein) nor exchange value, and will not be transferable or refundable.
6.11 Payment through Reseller
If Customer purchased a Service from a reseller or distributor authorized by us (“Reseller”), then to the extent there is any conflict between these Terms and the agreement entered between Customer and the respective Reseller, including any purchase order (“Reseller Agreement”), then, as between Customer and The Centre, these Terms shall prevail. Any rights granted to Customer and/or any of the other Users in such Reseller Agreement which are not contained in these Terms, apply only in connection with the Reseller. In that case, Customer must seek redress or realization or enforcement of such rights solely with the Reseller and not The Centre. For clarity, Customer’s and its Users’ access to the Service is subject to our receipt from Reseller of the payment of the applicable Fees paid by Customer to Reseller. Customer hereby acknowledges that at any time, at our discretion, the billing of the Subscription Fees may be assigned to us, such that Customer shall pay us directly the respective Subscription Fees.
7.1 Refund Policy
If Customer is not satisfied with its initial purchase of a Service, Customer may terminate such Service by providing us a written notice, within 30 days of having first ordered such Services (the “Refund Period”). In the event that Customer terminates such initial purchase of a Service, within the Refund Period, we will refund Customer the prorate portion of any unused and unexpired Subscription Fees pre-paid by Customer in respect of such terminated period of the Subscription, unless such other sum is required by applicable law, in the same currency we were originally paid (the “Refund”). The Refund is applicable only to the initial purchase of the Service by Customer and applies to any additional purchases, upgrades, modification or renewals of such Service. Please note that we shall not be responsible to Refund any differences caused by change of currency exchange rates or fees that Customer was charged by third parties, such as wire transfer fees. After the Refund Period, the Subscription Fees are non-refundable and noncancellable. To the extent permitted by law, if we find that a notice of cancellation has been given in bad faith or in an illegitimate attempt to avoid payment for Services actually received and enjoyed, we reserve our right to reject Customer’s Refund request. Subject to the foregoing, upon termination by Customer under this Section 7.1 all outstanding payment obligations shall immediately become due for the used Subscription Term and Customer will promptly remit to The Centre any fees due to the Services under these Terms.
7.2 Non-Refundable Services
Certain Services may be non-refundable. In such event we will identify such Services as non-refundable, and Customer shall not be entitled, and we shall not be under any obligation, to terminate the Service and give a Refund.
If, at any time, we record a decline, chargeback or other rejection of a charge of any due and payable Subscription Fees on Customer’s Account (“Chargeback”), this will be considered as a breach of Customer’s payment obligations hereunder, and Customer’s use of the Service may be disabled or terminated and such use of the Service will not resume until Customer re-subscribes for any such Service, and pay any applicable Subscription Fees in full, including any fees and expenses incurred by us and/or any Third Party Service for each Chargeback received (including handling and processing charges and fees incurred by the payment processor), without derogating from any other remedy that may be applicable to us under these Terms or applicable law.
These Terms are in full force and effect, commencing upon the Effective Date, until the end of the Service underlying the Account, either paid or unpaid, unless terminated otherwise in accordance with these Terms.
8.2 Termination for Cause
Either Customer or us may terminate the Service and these Terms, upon written notice, in case that (a) the other party is in material breach of these Terms and to the extent, curable, fails to cure such breach, within a reasonable cure period, which shall not be less than 10 days following a written notice from by the non-breaching party; or (b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 45 days.
8.3 Termination by Customer
Termination by Customer Customer may terminate its Subscription to the Service by cancelling the Service and/or deleting the Account, whereby such termination shall not derogate from Customer’s obligation to pay applicable Subscription Fees except where such termination is made within the Refund Period. In accordance with Section 8 above, unless mutually agreed otherwise by Customer and us in a written instrument, the effective date of such termination will take effect at the end of the then-current Subscription Term, and Customer’s obligation to pay the Subscription Fees throughout the end of such Subscription Term shall remain in full force and effect, and Customer shall not be entitled to a refund for any pre-paid Subscription Fees.
8.4 Effect of Termination of Service
Upon termination or expiration of these Terms, Customer’s Subscription and all rights granted to you hereunder shall terminate, and we may change the Account’s web address. It is Customer’s sole liability to export the Customer Data prior to such termination or expiration. In the event that Customer did not delete the Customer Data from the Account, we may continue to store and host it until either Customer or we, at our sole discretion, delete such Customer Data, and during such period, Customer shall still be able to make a limited use of the Service in order to export the Customer Data (the “Read- Only Mode”), but note that we are not under any obligation to maintain the Read-Only Mode period, hence such period may be terminated by us, at any time, with or without notice to Customer, and subsequently, the Customer Data will be deleted. Customer acknowledges the foregoing and its sole responsibility to export and/or delete the Customer Data prior to the termination or expiration of these Terms, and therefore we shall not have any liability either to Customer, nor to any User or third party, in connection thereto. Unless expressly indicated herein otherwise, the termination or expiration of these Terms shall not relieve Customer from its obligation to pay due Subscription Fees.
Section 4.0 (Privacy and Security), 5.0 (Third Party Services), 6.0 (Subscription Term, Renewal and Fees Payment) in respect of unpaid Subscription Fees, 8 (Term and Termination; Suspension), 9 (Confidentiality), 10 (Warranty Disclaimer), 11 (Limitations of Liability), 13 (Indemnification), 16 (Governing Law and Jurisdiction; Class Action Waiver and Arbitration) and 17 (General Provisions), shall survive the termination or expiration of these Terms, and continue to be in force and effect in accordance with their applicable terms.
Without derogating from our termination rights above, we may decide to temporarily suspend the Account and/or a User Profile (including any access thereto) and/or our Service, in the following events: (i) we believe, at our sole discretion, that you or any third party, are using the Service in a manner that may impose a security risk, may cause harm to us or any third party, and/or may raise any liability for us or any third party; (ii) we believe, at our sole discretion, that you or any third party, are using the Service in breach of these Terms or applicable Law; (iii) Customer’s payment obligations, in accordance with these Terms, are or are likely to become, overdue; or (iv) Customer’s or any of its Users’ breach of the Acceptable User Policy. The afore-mentioned suspension rights are in addition to any remedies that may be available to us in accordance with these Terms and/or applicable Law.
9.1 Confidential Information
In connection with these Terms and the Service (including the evaluation thereof), each party (“Disclosing Party and/or Customer”) may disclose to the other party (“Receiving Party and/or The Centre”), non-public business, product, technology and marketing information, including without limitation, customers lists and information, know-how, software and any other non-public information that is either identified as such or should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether disclosed prior or after the Effective Date (the “Confidential Information”). For the avoidance of doubt, (i) Customer Data is regarded as Customer’s Confidential Information, and (ii) our Site, Service, inclusive of their underlying technology, and their respective performance information, as well as any data, reports and materials we provided to you in connection with your evaluation or use of the Service, are regarded as our Confidential Information. Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without any use or reference to the Confidential Information.
9.2 Confidentiality Undertakings by the Receiving Party
The Receiving Party will (i) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates, service providers and agents, on a need to know basis and who are bound by confidentiality obligations at least as restrictive as those contained herein; and (ii) not use or disclose any Confidential Information to any third party, except as part of its performance under these Terms and as required to be disclosed to legal or financial advisors to the Receiving Party or in connection with a due diligence process that the Receiving Party is undergoing, provided that any such disclosure shall be governed by confidentiality obligations at least as restrictive as those contained herein.
9.3 Compelled Disclosure
Notwithstanding the above, Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body; provided, however, that to the extent legally permissible, the Receiving Party shall make best efforts to provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
Notwithstanding anything in these terms or elsewhere to the contrary and to the fullest extent permitted by applicable law:
10.1 Except as expressly set forth herein, the Site and the service are provided on an“ as is”, “with all faults” and“ as available” basis, and without warranties of any kind. We and our affiliates, subcontractors, agents and vendors (including, the third-party service providers, hereby disclaim any and all representations and warranties of any kind, including without limitation, warranties and/or representations of merchantability, functionality, title, fitness for a particular purpose and non-infringement, whether express, implied or statutory.
10.2 We and our vendors do not warrant, and expressly disclaim any warranty or representation that the service and Site, including the access thereto and use thereof, will be uninterrupted, timely, secured, error free, that data won’t be lost, that defects will be corrected, or that the Site and/or service are free from viruses or other harmful code. We and our vendors further disclaim any and all liability or responsibility for any delays, failures, interception, alteration, loss, or other damages that you and/or your data (including customer data) may suffer, that are beyond our control.
10.3 Except as expressly set forth herein, we do not warrant, and expressly disclaim any warranty or representation (i) that our service (or any portion thereof) is complete, accurate, of any certain quality, reliable, suitable for, or compatible with, any of your contemplated activities, devices, operating systems, browsers, software or tools (or that it will remain as such at any time), or comply with any laws applicable to you; and/or (ii) regarding any content, information, reports or results that you obtain through the service and/or the Site.
Notwithstanding anything in these terms or elsewhere to the contrary and to the fullest extent permitted by applicable law:
11.1 In no event shall either party hereto and its affiliates, subcontractors, agents and vendors (including, the third party service providers), be liable under, or otherwise in connection with these terms for (i) any indirect, exemplary, special, consequential, incidental or punitive damages; (ii) any loss of profits, costs, anticipated savings; (iii) any loss of, or damage to data, use, business, reputation, revenue or goodwill; and/or (iv) the failure of security measures and protections, whether in contract, tort or under any other theory of liability or otherwise, and whether or not such party has been advised of the possibility of such damages in advance, and even if a remedy fails of its essential purpose.
11.2 Except for the indemnity obligations of either party under section 13 (indemnification) herein, your payment obligations hereunder or breach of our acceptable use policy by either you or in case of a customer, in no event shall the total aggregate liability of either party, its affiliates, subcontractors, agents and vendors (including, the its third-party service providers), under, or otherwise in connection with, these terms (including the Site and the service), exceed the total amount of fees actually paid by you (if any) during the 12 consecutive months preceding the event giving rise to such liability. This limitation of liability is cumulative and not per incident.
12.1 Specific Laws
Except as expressly stated in these Terms, we make no representations or warranties that your use of the Service is appropriate in your jurisdiction. Other than as indicated herein, you are responsible for your compliance with any local and/or specific applicable Laws, as applicable to your use of the Service.
12.2 Reasonable Allocation of Risks
You hereby acknowledge and confirm that the limitations of liability and warranty disclaimers contained in these Terms are agreed upon by you and us and we both find such limitations and allocation of risks to be commercially reasonable and suitable for our engagement hereunder, and both you and us have relied on these limitations and risk allocation in determining whether to enter these Terms.
13.1 By Customer
Customer hereby agrees to indemnify, defend and hold harmless The LOA Centre (M) Sdn Bhd and its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, liabilities, losses, reasonable expenses or costs (collectively, “Losses”) incurred as a result of any third party claim arising from (i) Customer’s, violation of these Terms or applicable Law; and/or (ii) Customer Data, including the use of Customer Data by The Centre and/or any of its subcontractors, infringes or violates, any third party’s rights, including, without limitation, intellectual property, privacy and/or publicity rights.
13.2 By The LOA Centre (M) Sdn Bhd
The Centre hereby agrees to defend Customer, its affiliates, officers, directors, and employees, in and against any third party claim or demand against Customer, alleging that Customer’s authorized use of the Service infringes or constitutes misappropriation of any third party’s copyright, trademark or registered MyIPO patent (the “IP Claim”), and we will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on such IP Claim by a court of competent jurisdiction or agreed to via settlement we agreed upon, including reasonable attorneys’ fees.
The Centre’s indemnity obligations under this Section 13 shall not apply if: (i) the Service (or any portion thereof) was modified by Customer or any third party, but solely to the extent the IP Claim would have been avoided by not doing such modification; (ii) if the Service is used in combination with any other service, device, software or products, including, without limitation, Third Party Services, but solely to the extent that such IP Claim would have been avoided without such combination; and/or (iii) any IP Claim arising or related to, the Customer Data or to any events giving rise to Customer’s indemnity obligations under Section 13.1 above. Without derogating from the foregoing defense and indemnification obligation, if The Centre believes that the Service, or any part thereof, may so infringe, then The Centre may in its sole discretion: (a) obtain (at no additional cost to you) the right to continue to use the Service; (b) replace or modify the allegedly infringing part of the Service so that it becomes non-infringing while giving substantially equivalent performance; or (c) if The Centre determines that the foregoing remedies are not reasonably available, then The Centre may require that use of the (allegedly) infringing Service (or part thereof) shall cease and in such an event, Customer shall receive a prorated refund of any Subscription Fees paid for the unused portion of the Subscription Term. This Section 13.2 states The Centre’s sole and entire liability and your exclusive remedy, for any intellectual property infringement or misappropriation by the Centre and/or its service and underlying technology.
13.3 Indemnity Conditions
The defense and indemnification obligations of the indemnifying party under this Section 13 are subject to: (i) the indemnified party shall promptly provide a written notice of the claim for which an indemnification is being sought, provided that such indemnitee’s failure to do so will not relieve the indemnifying party of its obligations under this Section 13, except to the extent the indemnifying party’s defense is materially prejudiced thereby; (ii) the indemnifying party being given immediate and exclusive control over the defense and/or settlement of the claim, provided, however that the indemnifying party shall not enter into any compromise or settlement of any such claim that that requires any monetary obligation or admission of liability or any unreasonable responsibility or liability by an indemnitee without the prior written consent of the affected indemnitee, which shall not be unreasonably withheld or delayed; and (iii) the indemnified party providing reasonable cooperation and assistance, at the indemnifying party’s expense, in the defense and/or settlement of such claim and not taking any action that prejudices the indemnifying party’s defense of, or response to, such claim.
Our Service includes third party codes and libraries that are subject to third party open source license terms (the “Open Source Code” and the “Open Source Terms”, respectively). Some of such Open Source Terms determine that to the extent applicable to the respective Open Source Code licensed thereunder, such terms prevail over any conflicting license terms, including these Terms. We use our best endeavors to identify such Open Source Code, within our Service, hence we encourage Customer to familiarize itself with such Open Source Terms. Note that we use best efforts to use only Open Source Codes that does not impose any obligation or affect the Customer Data or related intellectual property (beyond what is stated in the Open Source Terms and herein), on an ordinary use of our Service that does not involve any modification, distribution or independent use of such Open Source Code. Notwithstanding anything to the contrary, we make no warranty or indemnity hereunder with respect to any Open Source Codes.
Occasionally we may make changes to these Terms for valid reasons, such as adding new functions or features to the Service, technical adjustments, typos or error fixing, for legal or regulatory reasons or for any other reasons as we deem necessary, at our sole discretion. When we make material changes to these Terms, we’ll provide Customer with notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Service or by sending Customer an email. Your continued use of the Service after the changes have been implemented will constitute your acceptance of the changes.
16.1 Governing Law; Jurisdiction
These Terms and any action related thereto will be governed and interpreted by and under the laws of Malaysia without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Courts of competent jurisdiction located in Kuala Lumpur, Malaysia, shall have the sole and exclusive jurisdiction and venue over all controversies and claims arising out of, or relating to, these Terms. Notwithstanding the foregoing, The Centre reserves the right to seek injunctive relief in any court in any jurisdiction.
16.2 Class Action Waiver
Where permitted under applicable law, you and The Centre agree that each party may bring claims against the other party only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative action. Unless both you and The Centre mutually agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
To the extent permitted under applicable Law, you and The Centre hereby irrevocably
agree to the following provisions:
16.3.1 Dispute resolution and Arbitration
Any dispute, claim, or controversy between you and us arising in connection with, or relating in any way to, these Terms (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination or expiration of these Terms) will be determined solely by mandatory binding arbitration. In arbitration there is no judge or jury and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms as a court would.
Notwithstanding clause 21.3.1 above, you and The Centre both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to seek injunctive relief in a court of law. In addition to the above, notwithstanding clause 21.3.1 above, The Centre may file a suit in a court of law against you to address intellectual property infringement claims.
16.3.3 Arbitration Process Rules
Either you or we may start arbitration proceedings. Any arbitration between you and us will be finally settled under the Arbitration Act, Section 4, then in force (the “AA Rules”) by one arbitrator appointed in accordance with the AA Rules. The arbitration will take place in Kuala Lumpur, and shall be conducted in the English language and unless otherwise required by a mandatory law of any jurisdiction, the law to be applied in any arbitration shall be the law of Malaysia, without regard to choose or conflicts of law principles. The arbitration proceedings shall be conducted on an expedited basis and shall result in an award within no more than 60 days. The arbitration shall be conducted on a confidential basis. The award of the Arbitrator shall be final and binding on the parties. The arbitration award shall be enforceable in any court of competent jurisdiction. Any motion to enforce or vacate an arbitration award under this agreement shall be kept confidential to the maximum extent possible.
16.3.4 Special Statute of Limitation
Any arbitration must be commenced by filing a demand for arbitration within 2 years after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits such limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable Law.
16.3.5 Notice; Process
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Dispute Notice”). The Dispute Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Dispute Notice is received, you or us may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or us shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. Without derogating from the generality of the confidentiality protection under Section 16.3.3 above, all documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable Law. Except as required to enforce the arbitrator’s decision and award, neither you nor us shall make any public announcement or public comment or originate any publicity concerning the arbitration, including, but not limited to, the fact that the parties are in dispute, the existence of the arbitration, or any decision or award of the arbitrator.
17.1 Translated Versions
These Terms were written in English. If a translated (non-English) version of these Terms conflicts in any way with their English version, the provisions of the English version shall prevail.
17.2 Force Majeure
Neither us nor you will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, interruption or failure of the Internet or any utility service, failures in third-party hosting services, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
17.3 Relationship of the Parties; No Third-Party Beneficiaries
The parties are independent contractors. These Terms and the Service provided hereunder, do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to these Terms.
We shall use your contact details that we have in our records, in connection with providing you notices, subject to this Section 17.4. Our contact details for any notices are detailed below. You acknowledge notices that we provide you, in connection with these Terms and/or as otherwise related to the Service, shall be provided as follows: via the Service, including by posting on our Site or posting in your account, text, in-app notification, e-mail, or phone; further acknowledge that an electronic notification satisfies any applicable legal notification requirements, including that such notification will be in writing. Any notice to you will be deemed given upon the earlier of: (i) receipt; or (ii) 24 hours of delivery. Notices to us shall be provided to The Centre., attn: Customer Service, at email@example.com or sent to 250, First Floor, S2 B12 Road, Uptown Avenue, 70300, Seremban, Negeri Sembilan.
These Terms, and any and all rights and obligations hereunder, may not be transferred or assigned by you without our written approval and consent, provided that you may assign these Terms to your successor entity or person, resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting rights, except for an assignment to a competitor of The Centre, and provided that you provide us with prompt written notice of such assignment and the respective assignee agrees, in writing, to assume all of your obligations under these Terms. We may assign our rights and/or obligations hereunder and/or transfer ownership rights and title in the Service to a third party without your consent or prior notice to you. Subject to the foregoing conditions, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns. Any assignment not authorized under this Section 17.5 shall be null and void.
These Terms shall be enforced to the fullest extent permitted under applicable Law. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.
17.7 No Waiver
No failure or delay by either party in exercising any right under these Terms will constitute a waiver of that right. No waiver under these Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
17.8 Entire Agreement
This Agreement, the Letters of Offer, the Schedules hereto, the said Terms as mentioned in this Agreement and any documents or instrument attached hereto integrate all the terms and conditions mentioned herein and incidental hereto and supersede all oral negotiations and prior correspondence in respect of the subject matter hereof.
Time wherever mentioned in this Agreement shall be of the essence of this Agreement hereby made by the parties hereto.
17.10 Successors in Title
This Agreement shall be binding upon the parties hereto and their successors in title respectively.