- Master Agreement
GENERAL CONDITIONS OF CONTRACT FOR THE SUPPLY OF SERVICES
This General Conditions of Contract for the Supply of Services (hereinafter referred to as the “said Agreement”) is made on the day and year stated in Section 1 of Schedule A hereto.
Locus-T Sdn Bhd (1267811-A), a private limited liability company incorporated in Malaysia under the Malaysia’s Companies Act, 2016 with its registered address at Level 17, Menara Amfirst, Jalan 19/3, 46300 Petaling Jaya, Selangor and having its principal place of business at Level 17, Menara Amfirst, Jalan 19/3, 46300 Petaling Jaya, Selangor (hereinafter referred to as “LT”) of the one part;
The Client whose name and descriptions are more particularly stated in Section 2 of Schedule A hereto (hereinafter referred to as “said Client”) of the other part
- LT is engaged in the business of information technology advisers and consultants in relation to online and web marketing services, electronic business, multimedia, system integration and its related business.
- LT represents that it is experienced in the providing of Project Management Service, SEO Service, PPC Service, Website Development, Website Maintenance, Website Management and its related business.
- The said Client agrees to engage LT as an independent contractor for the supply of services more particularly described in the relevant Service Orders as annexed in Schedule B of this Agreement (the “Purpose”) subject to the terms and conditions herein below.
- LT agrees to the engagement by Client to achieve and/or deliver the said Purpose, subject to the terms and conditions of this Agreement.
NOW IT IS HEREBY AGREED as follows:-
- DEFINITION AND INTERPRETATION
1.1 In this Agreement and in the Schedules (unless the context otherwise requires);
means this agreement incorporating all the contract documents annexed and referred herein.
“Approved Projects Worksheet”
means the project cost and eort tracking sheet reviewed and approved by LT, specifying the number of personnel planned to be deployed with the applicable pre-approved Rates for the respective job rates for each Service Request Documentation.
means a day of the Gregorian Calendar including public holidays and the weekend in Malaysia (Saturday and Sunday).
means all information, including without limitation, any trade secrets, technical know-how, architecture, plans, rates or other commercial information or any other information that is marked as confidential, of value to either Party or information related to this Agreement.
means the date of this agreement as specified in Section 1 of Schedule A hereto.
“Intellectual Property Rights”
means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing o, unfair competition rights, rights in designs, rights in computer software, database right, typography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, current or future and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
means a day during which a single employee of LT performs any work for not less than one hour and not more than eight hours.
“Monthly Man Day Worksheet”
means the monthly summary of the actual man-day required for each feature, furnished by LT to the Client on the last day of each month. The features will need to be approved and acknowledged by the Company.
means LT and/or the Client.
means the rates for the services specified in any Service Order executed by the parties as annexed in Schedule B.
means any and all order for service executed by the Parties for specific services to be provided by LT to the Client. Parties shall execute any number of Service Order for discrete services and shall be numbered in sequential order. Each Service Order which makes reference to this Agreement shall upon execution by Client and LT constitute an integral part of this Agreement. In the event of a conflict between the terms of this Agreement and a Service Order, the terms of this Agreement shall prevail unless (1) the particular provision of this Agreement which the parties intend to modify/vary is specifically identified as being modified/varied in the Service Order or (2) this Agreement specifically defers to the terms provided in the Service Order. Subject to the foregoing, the terms and conditions of this Agreement shall apply to each Service Order and shall be deemed incorporated into the Service Order by reference.
means such person appointed LT to monitor the development of said application and liaise with the Applicant.
1.2 Expressions in the masculine shall include the feminine and neuter genders and vice versa;
1.3 References in the singular include the plural and vice versa;
1.4 Words denoting persons include corporations, company, firm or partnership, corporate or unincorporated and vice versa, and also include their respective heirs, personal representatives, successors in title or permitted assigns, as the case may be, and any references herein relating to bankruptcy shall in respect of a corporation be referenced to the winding-up, liquidation, amalgamation or reconstruction as the case may be;
1.5 The words “herein”, “hereinafter”, “hereinbefore”, “hereof” and “hereinunder” and other words of similar import shall refer to this Agreement as a whole and not to any particular provision;
1.6 The word “including” and “in particular” are to be construed as being by way of illustration or emphasis only and not to be construed as, nor shall they take eect as limiting the generality of any foregoing words;
1.7 The words “other” and “otherwise” are not to be construed ejusdem generis with any foregoing words where a wider construction is possible;
1.8 Any reference to “pay”, or cognate expressions, includes payments made in cash or by way of cheques or bank drafts (drawn on a bank licensed to carry on banking business under the provisions of the Financial Services Act 2013) or eected through inter-bank transfers to the account of the payee, giving the payee immediate access to available funds and the words “Ringgit Malaysia” and the abbreviation “RM” mean the lawful currency of Malaysia;
1.9 Reference to provisions of any statutes or legislation includes such provisions as amended modified or re-enacted thereof;
1.10 Words denoting an obligation on a person or party to do any act matter or thing includes an obligation to procure that it be done and words placing a person or party under a restriction includes an obligation not to permit infringement of the restriction;
1.11 The headings in this Agreement are inserted for convenience only and shall not be taken to be read and construed as essential parts of this Agreement nor shall they aect its construction and interpretation;
1.12 The Schedules (if any) shall be taken, read and construed as an essential part of this Agreement and shall form an integral part thereof;
1.13 Any reference to a sub-paragraph, paragraph, sub-clause, clause, schedule or party is to the relevant sub-paragraph, paragraph, sub-clause, clause, schedule or party of and to this Agreement and any reference to this Agreement or any of the provisions hereof includes all amendments and modifications made to this Agreement from time to time in force;
1.14 Any reference to “writing”, or cognate expressions, includes any communication eected by telex, cable, facsimile transmission or other comparable means;
1.15 Any reference to a “business day” is to a day on which the banks in Selangor are open for business and any reference to a “day”, “week”, “month” or “year” is to that day, week, month or year in accordance with the Gregorian calendar;
1.16 If any period of time is specified from a given day, or the day of a given act or event, it is to be calculated inclusive of that day and if any period of time falls on a day, which is not a business day, then that period is to be deemed to only expire on the next business day;
(a) In the event of any conflict or discrepancy between the provisions in the clauses and the Schedules, unless otherwise expressly provided in writing the provisions of the Schedules shall prevail.
(b) In the event of any conflict or discrepancy between the provisions of this Agreement and any of the other Security Documents, unless otherwise expressly provided in writing, the provisions of this Agreement shall prevail.
2.1 The said Client agrees to engage LT as an independent contractor for the supply of services more particularly described in the relevant Service Orders as annexed in Schedule B of this Agreement (the “Purpose” or the “Service”) subject to its terms and conditions and the terms hereinbelow.
2.2 This Agreement shall act as the principal agreement between the parties and shall be the base term for the supply of services by LT to the Client. All purchase/order for services by the Client shall be made via Service Orders and annexed in Schedule B.
2.3 The Client shall issue a Service Order for any of the services provided by LT and the Service Order shall be deemed to be an oer by the Client to purchase LT’s services. The Client shall ensure that the terms of the Order and any relevant specifications are complete and accurate. The Service Order shall only take eect upon acceptance by LT.
2.4 The Service Order shall only be deemed to be accepted when LT issues a written acceptance of the Order, in the form of an invoice or when LT has started to provide the services having received the Service Order, whichever happens first.
2.5 LT reserves the right to decline any Service Order whatsoever issued by the Client and in the event that the Client makes any payment/deposit simultaneously with the issuance of Service Order, LT shall refund such payment to the Client.
2.6 Once the Service Order is accepted by Locus-T, the Service Order shall not be cancellable unless mutually agreed by both parties, and all fees paid are non-refundable in any circumstance whatsoever. The Client shall be deemed to have issued a purchase order to Locus-T for the relevant services upon submission of the Order to LT.
3.1 The total compensation for the work performed shall be as set forth in the relevant Service Order executed by the parties as annexed in Schedule B hereto. These payments shall be made according to the milestones/payment schedule set forth in Schedule B hereto.
3.2 All service fees in this Order are exclusive of any taxes, duties or any other government levies or financial charges. Client agrees to pay and be responsible for any such taxes, levies or charges on the sale and use of the Services in addition to our service fees. In the event LT is required by any applicable law to collect any taxes or duties, the Client agrees to pay such taxes or duties to LT.
3.3 Unless otherwise stated in the relevant Service Orders, payments are to be made in full within fourteen (14) days from the date of LT Invoice. Where the Fees are payable for renewal services, the Client shall make the relevant payment in full to LT seven (7) days prior to the Service’s expiry date.
3.4 LT reserves the right to impose an overdue interest rate of minimum 5% per annum for late payment and for any outstanding amount calculated on a daily basis from the due date of payment to the date of actual full payment being received by LT.
3.5 Unless otherwise stated in the relevant Service Orders, any non-payment by the Client within the stipulated payment term shall be considered a material breach entitling LT to terminate this Agreement and/or terminate the relevant service.
3.6 The price stated in the Order shall be based on a qualified estimate of the number of hours required to provide the Services. This is an estimate only and Services shall be invoiced in accordance with the actual number of hours spent and the price set out in the Order or Quotation and in the event that the price is not stipulated, the Client shall be charged at an hourly rate based on best practice. LT shall be obliged to update the estimates and budgets on an ongoing basis following, among other things, changes made to the Order (applicable for Enterprise/A-LA-CARTE packages only).
3.7 A Quotation for the supply of Services given by LT shall not constitute an oer. A Quotation shall only be valid for a period of 14 Business Days from its date of issuance.
3.8 The Client acknowledges that certain Services may involve the licensing of third party Intellectual Property Rights and that the Client may be required to enter into a licence directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licences from third party owners and licensors. Whilst every eort is made to ensure that costing estimates are accurate, LT reserves the right to amend any estimate, should an error or omission be made.
3.9 The Client acknowledges that there are third party charges packaged into LT’s pricing structure and/or payment conditions and as such the Client agrees to be bound by any modifications and variations to the change in such third party charges.
This Agreement shall become eective as of the Date of this Agreement as specified in Section 1 of Schedule A hereto. Unless otherwise terminated in accordance with the provisions of Clause 5 of this Agreement, will continue until the work as set forth in Schedule B have been completed and LT has been paid in full for purposes performed as per Schedule B (the “Term”).
Both Parties shall have the right (without prejudice to its other rights and/or remedies) to terminate this Agreement immediately by notice in writing to the Other Party if:
(a) the Other Party is in material breach of this Agreement and either that breach is incapable of remedy or the Other Party shall have failed to remedy that breach within thirty (30) days from receipt of notice requiring it to remedy that breach; or
(b) if both Parties mutually consent to the termination of the Agreement in writing.
- EFFECTS OF EXPIRY AND TERMINATION
6.1 Unless specified otherwise in the Service Order, the Service Order shall be renewed automatically for a further term as stipulated in the Contract (wherever applicable) unless and until either party notifies the other of its wish to terminate the Service Order at the expiry of the current year by giving the other party at least 30 days’ written notice to expire at the end of that contract term.
6.2 Without limiting its other rights or remedies, each party may terminate the Service Order with immediate eect by giving written notice to the other party if the other party:
(a) commits a material breach of the Agreement and terms and conditions and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) becomes or is insolvent or is unable to pay its debts or a petition is presented or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally; or
(c) has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all part of its business.
6.3 LT shall be entitled to without notice suspend the Client’s access to any Services, in whole or in part, at the Client’s cost and expense and at the Client’s risks, without any compensation for any loss, damage or expenses which the Client may suer or incur, in any of the following circumstances;
(a) The Client’s use of the Services is a security risk to any person, adversely aects the Services or system, server, network, software, device, hosts or user belonging to or operated by LT or
another party, subjects LT or any person to liability or is fraudulent;
(b) the Client fails, refuses and/or neglects to settle any of LT’s invoice in full on its due date;
(c) any Services engaged by the Client have been suspended or terminated as a result of any act, omission, breach, default, misconduct or fraud on the part of the Client; or
(d)any Services involving or requiring services of third parties, not limited to Alibaba Group or Google Incorporate, which has been suspended or terminated by the relevant third party.
6.4 Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Agreement without undue delay. If relevant, the Client shall be obliged to remove codes, etc, from websites without undue delay. If the Client fails to do so, LT shall be entitled to invoice the Client in line with its current terms and conditions for subsequent Services without such invoicing amounting to a waiver of LT’s right to terminate the Contract.
6.5 LT reserves the right at its sole discretion to remove any of the Client’s Content from its systems, device, and equipment without making any backup copies.
6.6 The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the contract and these Terms without the prior written consent of LT.
6.7 LT shall be entitled subcontract any of its rights or obligations under the contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
6.8 Notwithstanding anything to the contrary, LT reserves the right to terminate any Services without assigning any reason by giving one (1) month’s written notice to the Client.
6.9 The suspension and/or termination of Services under one or more Service Orders shall not affect the validity and enforceability of the other Service Orders unless otherwise informed by LT in writing.
6.10 In the event of termination by LT due to the fault of the Client, the Client undertakes to promptly pay LT the following:
(a) for all work done prior to the eective date of termination (the “Termination Date”); and
(b) for the full sum due in the current milestone (if applicable).
6.11 In the event of mutual termination by both parties, the Client undertakes to promptly pay LT for all work done prior to the eective date of termination (the “Termination Date”);
6.12 In the event of termination of this Agreement by Client due to the fault of LT, the Client undertakes to promptly pay LT the following:
(a) for all work done prior to the Termination Date; and
(b) for all work done in the current milestone prior to the eective date of termination, as reasonably accepted by Client (if applicable).
6.13 Notwithstanding anything in this Agreement, all payments and/or deposits made by Client to LT is non-refundable.
6.14 Expiry or termination of this Agreement shall not:
(a) release the parties from any liability or right of action or claim which at the time of such expiry or termination has already accrued or may accrue to either party in respect of any act or omission prior to such expiry or termination; or
(b) aect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such expiry or termination.
- SCOPE OBLIGATION REPRESENTATION AND COVENANTS
7.1 LT agrees to do the following:
(a) Perform the task as detailed in the relevant Service Order executed by the parties as annexed in Schedule B of this Agreement, and extend its best eorts to conform in all material respects with the specifications provided as detailed in Schedule B within the timeframe specified.
(b) Ensure the work performed is satisfactory and reasonably acceptable to the Client and substantially free of defects and to promptly rectify any defects detected.
(c) LT warrants that it will provide the services as stipulated in the Order using reasonable care and skill to conform in all material aspects with the delivery of the Services.
(d) To cooperate and consult the Client with respect to all aspects of the services rendered under this agreement and to promptly comply with reasonable requests of the Client under this agreement.
(e) To ensure that it has and maintains all licences, permissions and consents from time to time to the extent required to perform the services under this agreement.
(f) To perform the work and/or deliver the service as detailed in Schedule B in accordance with good industry practice.
(g) To fully comply with the Client’s reasonable instructions on any matter, as per the Agreement concerning the work/services under this Agreement and shall only take instructions from the Client’s designated representative.
(h) LT shall commence the work/service upon execution of the appropriate Service Order and warrants that it will exercise all due skill, care and diligence in the performance of the work/service.
7.2 The Client agrees and/or acknowledges to do the following:
(a) Engage LT to perform the work/service as further detailed in the relevant Service Order executed by the parties as annexed in Schedule B.
(b)To perform all acts and execute all things necessary at its own cost and expense for the full discharge of LT’s obligations under these Terms. The Client shall provide assistance and technical information to LT, as reasonably required by LT in sucient time to facilitate the execution of the Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information and contents provided to LT and warrants and undertakes to LT that the Client’s employees assisting in the execution of the Order have the necessary skills and authority.
(c) Provide in a timely manner all initial information, and supply all relevant data and/or content needed by LT, not limited to, furnishing all requested data, required information, required permissions, required consents, at the Client’s cost, reasonably requested by LT for the purposes of performing its obligations under this Agreement.
(d) Provide in a timely manner, all information, materials and actions available/ necessary for the performance of the work/services, as applicable, data, designs, programs, specifications, management decisions, approvals, acceptance criteria, and other information and material, at the Client’s cost, for LT’s use in carrying out the work/service.
(e) The Client shall provide equipment and software (“Project Tools”) to LT, where applicable, in order for LT to fulfil its obligations under the Service Order.
(f) All services including campaigns or projects shall only commence upon compliance to the prescribed payment terms & all relevant documents, images, login information & other relevant details which are essential for the execution of the Client’s Work.
(g) LT shall have the right at its sole discretion, vary or modify any of the services (whether in whole or in part) based on the client’s pre-agreed objectives and expected outcome/goals.
(h) LT shall have the right but not the obligation to appoint third parties to carry out the responsibilities and obligations, and/or exercise the rights, of LT under these Terms or with respect to any part of the Services.
(i) LT officers, directors, employees, agents and representatives are given the authority to manage and optimize the Clients’ projects and online campaign (including but not limited to budget
management, keyword strategy, and ad text development and changes of website) & have direct and remote access, where applicable, to the Client’s website to properly discharge its obligations under the Services.
(j) Client hereby represents and warrants that it is the owner and operator of the website which is the subject matter of the Services hereunder (applicable only for Landing page, Website management and Website maintenance service).
(k) The Client shall procure, use and provide its own hardware, device, equipment, server, router, switches, hub, console, terminal, modem, solid-state storage device, network attached storage and other devices and equipment (“Hardware”), to enable LT to carry out the relevant Services, and the Client is solely responsible for all the risks to Clients’ Hardware at all times.
(l) For Services relating to SEO on Websites within the control of the Client, the Client shall be exclusively responsible for implementing the optimisation changes recommended by LT. In certain cases where amendments to existing optimisations are required to be performed on by LT, the Client shall grant to LT access to the site’s FTP or content management systems.
(m) The Client shall subject to request by LT provide adequate workspace and internet access to enable LT and its personnel to discharge their obligations with respect to the relevant Services to be performed at the Client’s site.
(n) LT may at any time and from time to time at its sole discretion disrupt the Services while conducting routine tests, maintenance, upgrade or repair, to any system used for the Services
subject to prior notification to the Client.
(o) LT shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
(p) The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and/or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by LT.
(q) The Client shall be obliged to inform LT immediately of any changes to domain names, websites, technical setup and any other material information regarding the technical infrastructure which may aect the Services delivered by LT. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, technical infrastructure or where it may otherwise be required in order for LT to execute its duties without any disruption.
(r) In the event that the Client fails to undertake those acts or provide materials required under clause 7.2 within any of the agreed deadline (and at least within fifteen (15) Business Days of the date requested by LT, LT shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Order whether or not LT has been able to deliver them.
(s) The fully-developed website is targeted to be published within thirty (30) days. Clients shall revert to LT within the stipulated period, failing which the website shall be put on hold. Client shall be responsible for any and all additional costs incurred for any further changes per time.
(t) The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services, including without limitation its obligations under the Personal Data Protection Act 2010, Competition Act 2010 and any equivalent legislation and hereby agrees to indemnify and to keep LT indemnified in respect of any and all costs, claims or proceedings whatsoever brought against LT by any third party in connection with any breach of the same by the Client.
(u) LT requires prior notice to be given for any alterations relating to the Client’s website(s) that may aect the Services supplied by LT. If any alterations are made by the Client or a third party, the Client’s site(s) may be aected and LT cannot be held responsible.
(v) LT advises that regular, fresh content added to the site will help to improve the stability of rankings within search engines and the Client understands that regular, unique content plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO services (applicable to SEO services only).
(w) The Client shall not resell, delegate, sub-license or transfer, any rights granted to the Client pursuant to the Services.
(x) The Client shall not reverse engineer or disassemble or modify or adapt any software, device, network or server provided in connection with the Services.
(y) In the event that the Client becomes aware of any breaches or possible breaches of any representations or warranties above, the Client shall notify LT of such and the Client shall extend all assistance as may be reasonably required by LT to remedy the situation.
- CREDITS AND MAKE GOOD
8.1 The Client may not claim a breach, terminate or cancel the contract if there are typographical errors, incorrect ad placements, under deliveries, omissions or errors in advertising, social media and website content provided by LT.
8.2 In the event that corrective action is required due to typographical errors, incorrect ad placements, under deliveries or omission of copy, LT shall perform the relevant corrective action within three working days from receipt of notification by Client or upon discovery. In any event, LT shall not be liable to the Client for any loss or damage that results from any typographical error, incorrect ad placement, under delivery, omission or error related to the products and services it provides.
8.3 When there are typographical errors, incorrect ad placements, under deliveries, omissions or errors in advertising, social media and website content, the Client may request to utilise “Credits” or “Make Good”.
8.3.1 Credits: A request for a ‘credit’ and any claim for adjustment due to error by the Client and/or request for improvements and changes must be made within the contracted Maintenance period.
8.3.2 Make Good: A request for a ‘make good’ may be made by the Client. Make goods for ad placements that are placed incorrectly, under delivered or contained incorrect content by LT shall be performed by LT.
- CONFIDENTIAL INFORMATION
9.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
9.2 During the term of the Contract and for a period ending 3 years from the date of its conclusion, the Receiving Party shall take the same care as it personally uses with its own confidential information, to avoid, without the Disclosing Party’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Disclosing Party’s business or operational information which the Disclosing Party’s has designated as confidential.
9.3 The obligation in Clause 9.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into LT’s possession without an obligation of confidence, is independently developed by LT, or which LT is required to disclose by law.
9.4 During the term of the Service and for a period ending 3 years from termination thereof, the Client will not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non-Client materials provided by LT concerning the method or approach LT uses in providing the Services.
9.5 Each party agrees to comply with its respective obligations under the Data Protection Act 2010.
9.6 The Client shall be obliged to indemnify LT for any loss, including costs incidental to legal proceedings, suered by LT as a result of the processing of personal data which the Client has contributed being in contravention of the Data Protection Act 2010 or marketing law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party described in the present clause.
- PARTIES’ REPRESENTATIONS AND WARRANTIES
10.1 The Parties each represent and warrant as follows:
(a) Each Party has full power, authority, and right to perform its obligations under the Agreement.
(b) This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws aecting creditors’ rights generally and equitable remedies).
(c) The Client shall make timely payments as detailed in Schedule B hereto.
(d) The Client shall provide such other assistance to LT as it deems reasonable and appropriate.
10.2 The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of LT which is not set out in the Terms. Any samples, drawings, descriptive matter, or advertising issued by LT and any descriptions or illustrations contained in the LT‘s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the contract or any other contract between LT and the Client for the supply of services.
- NATURE OF RELATIONSHIP
The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. LT is and will remain an independent contractor in its relationship to the Client. Nothing in this Agreement shall create any obligation between either Party with a third party.
12.1 LT shall indemnify and hold harmless the Client and its ocers, members, managers, employees, agents, contractors, sub-licensees, aliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suer from or incur and that arise or result primarily from (i) any gross negligence or wilful misconduct of LT arising from or connected with LT’s carrying out of its duties under this Agreement, or (ii) LT’s breach of any of its obligations, agreements, or duties under this Agreement.
12.2 The Client shall indemnify and hold harmless LT and its ocers, members, managers, employees, agents, contractors, sub-licensees, aliates, subsidiaries, successors from and against all Claims that it may suer from or incur and that arise or result primarily from (i) the Client’s operation of its business, (ii) the Client’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party, (iii) any gross negligence or wilful misconduct of the Client arising from or connected with the Client’s carrying out of its duties under this Agreement, (iv) the Client’s breach of any of its obligations, agreements, or duties under this Agreement or, (v) all liabilities, costs and expenses whatsoever and howsoever incurred by LT in respect of any third parties as a result of LT’s provision of Service in accordance with the Order, Specification, or the content of the Client’s advertising or web pages which result LT in claims or proceedings against LT for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality, or contract, or for defamation.
12.3 Notwithstanding Clause 12.1, LT shall have no liability for any losses or damages which may be suered by the Client whether the same are suered directly or indirectly or are immediate or consequential which fall into the following categories:
12.3.1 Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
12.3.2 Loss of data;
12.3.3 Fraudulent clicks on any of the Client’s accounts managed by LT.
12.3.4 To the extent such liability is not excluded by sub-clauses 12.3.1, 12.3.2 and clause 12.4 below, LT’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Service or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not, in any event, exceed the total sum invoiced for the Services.
12.4 LT shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, and faults of LT third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. LT shall use its reasonable eorts to assist in remedial eorts if so requested by the Client. Any work connected with remedial eorts as described above shall be charged to the Client separately in accordance with these Terms or (at LT’s discretion) LT price list applicable from time to time.
12.4.1 LT shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup, etc. and aecting the Services delivered by LT. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of LT’s price list applicable from time to time at LT’s discretion.
12.4.2 LT shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, LT shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign oers or other matters beyond LT‘s control and reserves the right to make changes to Services as a result of the same. In addition, LT shall not be liable for other changes or discontinuation of search engines.
12.4.3 LT shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, LT shall not be liable for ensuring that such Services lead to a certain volume of trac, number of clicks, registrations, purchases or the like.
12.4.4 LT shall not be responsible for URLs dropped or excluded by a search engine for any reason.
- INTELLECTUAL PROPERTY
13.1 The Client represents and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, other artwork, Application functionality, design, user flow or intellectual property rights (“Materials”) furnished to LT for purposes of the work in the relevant Service Order executed by the parties as annexed in Schedule B are permitted to be used, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend LT and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Client.
13.2 It is the responsibility of the Client to ensure that they have the right to use any Materials provided to LT for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to LT to use such Materials for the purposes of providing the Services for the duration of the contract.
13.3 The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. LT shall be entitled to reject and delete such material without incurring any liability. In addition, LT shall be entitled to cancel the Order.
13.4 The Client shall indemnify LT against all damages, losses and expenses suered or incurred by LT as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
13.5 The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
13.6 Unless expressly stated otherwise in these Terms or in the Service Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of LT or the relevant third party from whom LT has acquired a right of use with a view to executing the Service Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in LT.
13.7 The Intellectual Property Rights as mentioned in Clause 13.6 shall not be used, assigned, distributed, copied, forwarded to online or oine activities by the Client without a separate, express written agreement.
13.8 If LT creates software, scripts, and any other services available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive personal non-transferable license to use such material until the Services under this agreement cease.
13.9 The Client hereby irrevocably licenses LT to use and display the Client’s name, figure, logo, etc. as a reference on the LT website, other marketing materials or types of media whilst they are a Client of LT and for 18 months after this Contract terminates. The Client agrees to send LT its most recent logo or figure as and when it is amended from time to time.
13.10 All advertising copy which represents the creative eort of LT and/or utilization of creativity, illustrations, labour, composition or material furnished by it, is and remains the property of LT including all rights of the copyright therein. The Client understands and agrees that it cannot authorize photographic or other reproductions, in whole or in part, of any such advertising copy for use in any other advertising medium.
13.11 All royalty-free images provided by LT to the Clients for use in the services shall be used in the Landing Page / Website only (and for no other purposes) during the term of the Services only. Upon termination or expiry of the Services hereunder, the Client shall immediately cease using such royalty-free images and shall indemnify and keep indemnified LT in full for any loss or damages suered or incurred as a result of the Client’s use of the royalty-free images.
13.12 The Client acknowledges that in the event Google Accounts are created by LT as part of the delivery of Services to the Client, the ownership of the Google account shall belong to LT and shall only be surrendered to the Client, in the event the Client has signed and fulfilled a twelve (12) months contract and have run a campaign for a minimum period of 12 months.
- AMENDMENTS AND VARIATIONS
14.1 No amendment, change, or modification of this Agreement and the relevant modules/documents herein annexed shall be valid unless in writing and signed by both Parties.
14.2 The parties agree that in the event of any variation proposed on the services to be performed in the relevant Service Order executed by the parties as annexed in Schedule B, the proposed variation shall be notified in writing and upon acceptance of the proposal, the parties shall thereafter execute a change/variation order and amend the relevant Statement of Work accordingly. If any such change or variation causes an increase or decrease in the cost of, or the time required for, the performance of any part of the Services, the Parties shall mutually agree for an equitable adjustment in price or delivery schedule or both.
Both Parties may assign this Agreement only upon written and mutual consent by both Parties, which shall not be unreasonably withheld.
- SUCCESSORS AND ASSIGNS
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall insure to the benefit of the successors and assigns of the Parties.
- FORCE MAJEURE
Neither party shall be in breach of this Agreement if there is any total or partial failure of performance by it of its duties and obligations under this Agreement occasioned by any act of God, fire, the act of government or state, war, civil commotion, insurrection, embargo, or prevention from or hindrance in obtaining any raw materials, energy or other cause beyond the control of either party. If either party is unable to perform its duties and obligations under this Agreement as a direct result of the eect of one or more of such causes such party shall give written notice to the other of such inability stating the cause in question. The operation of this Agreement shall be suspended during the period (and only during the period) in which the cause continues to have eect. Forthwith upon the cause ceasing to have an eect, the party relying upon it shall give written notice thereof to the other. If the cause continues to have eect for a period of more than 180 days, the party not claiming relief under this clause shall have the right to terminate this Agreement upon giving 30 days written notice of such termination to the other party but such notice shall not take eect if the other party gives notice within that period that the cause has ceased to prevent the operation of this Agreement.
- NO IMPLIED WAIVER
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, e-mail or by mail (registered or certified mail, postage prepaid, return receipt requested) to the respective Parties as follows:
If to LT:
Level 17, Menara Amfirst, Jalan 19/3, 46300 Petaling Jaya, Selangor
If to the Client:
As per details stated in Section 2 of Schedule A hereto
- GOVERNING LAW
20.1 This Agreement shall be governed by the laws of Malaysia.
20.2 The Parties shall, in good faith, attempt to settle amicably and by mutual agreement, any disputes or conflicts arising in connection with the Agreement.
20.3 All and any disputes, conflicts or dierences arising between the Parties in respect of this Contract, or breach, termination or invalidity thereof, which cannot be resolved by the Parties within a period of sixty (60) days pursuant to the foregoing provisions, shall be settled by the courts of Malaysia. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled to.
- COUNTERPARTS/ELECTRONIC SIGNATURES
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, or other electronic media shall have the same force and eect as an original signature.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be eective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not aect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
- ENTIRE AGREEMENT
23.1 This Agreement and relevant modules/documents herein annexed constitutes the entire agreement and understanding of the parties and supersedes all prior oral or written agreements, understandings or arrangements between them relating to the subject matter of this Agreement. Neither party shall be entitled to rely on any agreement, understanding or arrangement, which is not expressly contained in this Agreement and no change may be made to it except in writing signed by duly authorised representatives of both parties.
23.2 In the event of inconsistency between the modules/documents, the order of precedence is as follows with the first document having the highest precedence:-
23.2.1 this agreement;
23.2.2 the relevant Service Order;
23.3 No failure or delay on the part of either of the parties to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof nor shall any single or partial exercise of any right or remedy preclude the further exercise of any right or remedy as the case may be. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
If any provision of the term of this Agreement shall become or be declared illegal invalid or unenforceable for any reason whatsoever, such term or provision shall be divisible from this Agreement and shall be deemed to be deleted from this Agreement provided always that if such deletion substantially aects or alters the commercial basis of this Agreement the parties shall negotiate in good faith to amend and modify the provisions and terms of this Agreement as may be necessary or desirable in the circumstances.
Time whenever mentioned shall be of the essence of this Agreement.
- LEGAL FEES
Each party shall bear its own fees and cost for preparation of this Agreement. The stamping fee of this Agreement shall be borne by the Client.
Notwithstanding anything in this agreement, LT shall in its sole discretion reserve the right to enter into any negotiations, arrangements with any person (other than the Client) for the supply of the same or similar goods and services contained or referred to in the Statement of Works or Purchaser Orders without being liable to the Client in any way whatsoever.
29.1 LT reserves the right to modify or discontinue, temporarily or permanently, the Services subject to prior notice to the Client and LT shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
29.2 During the term of this Agreement and for a period of 12 months thereafter, the Client agrees not to employ or engage or solicit to employ or engage any of LT’s employees.
29.3 The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way aect that party’s right later to enforce or to exercise it.