TERMS OF BUSINESS
Beware! Here lies the legal stuff - read and tread carefully.
Effective
Date: 1 May 2020
1.
Introduction
1.1. These
Terms of Business (this “TOB”) is a binding agreement
between you and MISHU (hereinafter referred to as “MISHU”, “we”, “us” or “our”, as the case may be). MISHU is owned and operated by MISHU Sdn Bhd (Company No. 202001002122 (1358441-X)).
1.2. This TOB
governs and regulates our performance and provision of the following services to
you through our website https://setiausaha.com.my
(including the document portal which we provide as part of the services) (the “Platform”):
1.2.1.
company incorporation or switching of corporate
secretary for an existing entity;
1.2.2.
limited liability partnership (LLP) registration or
switching of compliance officer for an existing LLP;
1.2.3.
monthly corporate secretarial services;
1.2.4.
employment visa application services;
1.2.5.
licenses and permits application services; and
1.2.6.
general business advisory services.
Any other services offered on the Platform will, from time to time, be
governed by separate terms of business which will be uploaded to the Platform.
1.3. By clicking
“register” you unconditionally acknowledge and agree that:
1.3.1.
you have read and understood this TOB;
1.3.2.
you are of legal age to enter into a binding agreement;
and
1.3.3.
you are
legally bound by this TOB.
1.4. Please
read and understand this TOB carefully before continuing to use Perkhidmatan Kami,
as it contains important information regarding your legal rights and remedies. This
TOB should be read in conjunction with our Privacy Policy (https://setiausaha.com.my/privacy-policy/) and
Website Terms of Use (https://setiausaha.com.my/terms-of-use/). If you
do not understand this TOB, or any services or products we provide, you should
Hubungi Kami before placing any order, filling any forms and/or sending us any information.
1.5. We
reserve the right, in our sole and absolute discretion, to modify, vary, amend,
change and/or update this TOB, and any policies or agreements which are
incorporated herein at any time as we deem fit and with reasonable notice to
you (for example, by posting an update on the Platform, or by emailing the
updated TOB to you). Such modifications, variations, amendments, changes and/or
updates to this TOB shall be effective upon the posting of an updated version
on the Platform. You agree that it shall be your responsibility to review this
TOB regularly to ensure your understanding of this TOB is current and you
understand the terms and conditions that apply to your access to, and use of,
the services.
1.6. Your
non-termination or continued access to and use of the services after the
effective date of any modifications, variations, amendments, changes and/or
updates constitutes your acceptance of, and agreement to be bound by, the
revised TOB.
1.7. If you do
not agree to this TOB or with any subsequent modifications, variations,
amendments, changes and/or updates, you may terminate this TOB in accordance
with Clause 15.4 of this
TOB. If you have any question regarding this TOB, please consult a professional
lawyer.
2.
Placing of an Order
2.1. When you
place an order for any service or product using the online facilities or tools
provided on the Platform, you make an offer to purchase the requested service
or product in accordance with this TOB (“Order”).
2.2. When you
place an Order, you will receive a message via an email from us acknowledging
that we have received and are reviewing your Order.
2.3. Your
Order constitutes an offer to us to purchase Perkhidmatan Kami or product and is
subject to acceptance by us, in our sole and absolute discretion. We will
confirm such acceptance of the Order by sending you a message via an email
confirming our acceptance.
2.4. Each
Order, once accepted by us, becomes a service contract and shall immediately
constitute a separate and independent binding contract between you and us,
incorporating this TOB.
2.5. We
reserve the right to decline or refuse any such requests in our sole and
absolute discretion without providing a reason.
3.
Status
3.2. Without
limiting the generality of the foregoing, the services are not available to
persons under the age of eighteen (18) or such persons that are forbidden for
any reason whatsoever to enter into a contractual relationship.
4.
Price and Payment
4.1.
When you make an online payment
to us for any service or product, your payment is processed by our secure
third-party payment gateway provider. The payment gateway provider will store
your banking, e-wallet or debit/credit card details securely, without us having
access to the details. Our systems only retain details of the last 4 digits of
your card or bank account number for reference purposes. The last 4 digits are
recorded in the finance section of your registered account.
4.2.
The processing of payments or credit, if applicable,
in connection with your use of the Platform is subject to the terms and
conditions and the privacy policy of the payment gateway provider and your financial
institution, e-wallet or debit/credit card company. We are not responsible for
any errors made by the payment gateway provider. In connection with
your use of the services, we will receive certain transaction details that we
will use exclusively in line with our Privacy Policy.
4.3.
We will not be liable for any loss or damage,
including theft or fraud, arising directly or indirectly from:
4.3.1. our failure or omission to
protect your personal data from being seen by other persons or otherwise
obtained by other persons when you enter your payment details online;
4.3.2. your failure to provide accurate
information in the course of the online payment process; or
4.3.3. any other reasons in connection
with the specified mode of payment.
4.4. The services
provided by MISHU to you are charged in Ringgit Malaysia (MYR). Payment
received means when money is confirmed as having been deposited in our bank account
as cleared funds.
4.5. The
prices shown on our Platform are exclusive of sale and services tax (“SST”), government filing fees and stamp duty. The
total purchase price, including SST and any other filing fees and stamp duty,
will be displayed in your shopping cart prior to confirming the order. For government
filing fees and stamp duty, we shall process all payments made by you by acting
on your behalf. All prices are payable immediately.
4.6. You
remain liable for the payment of the applicable taxes and you shall pay all our
invoices, where applicable, in full, free of any withholding and/or deductions
for applicable taxes and bank charges.
4.7. We reserve
the right to change, modify or update the prices and fees on our Platform and
to change, or withdraw any service or product at any time, and such changes or
modifications shall be posted on the Platform and be effective immediately.
4.8. Every
effort is made to ensure that the prices are correct, but in the event of
serious error, any transaction shall be voidable by us and you would then be
entitled to a full refund.
4.9. If you
have purchased or obtained services for a period of months or years, changes or
modifications in prices and/or fees shall be effective when the services in
question come up for renewal, as further described below. Prior to the renewal
of Perkhidmatan Kami, you will receive a notice by email from us requesting for your
confirmation as to whether you would like to proceed with Perkhidmatan Kami, based
on the revised prices and/or fees. If we do not hear from you within fourteen
(14) calendar days from the date of our email notification to you on the
change, modification or update of any of our prices and/or fees on the Platform,
you will be deemed to have accepted our revised prices and/or fees posted on
the Platform and you will be charged the revised prices and/or fees when the
services in question come up for renewal.
4.10. If you
have indicated that you do not wish to proceed with Perkhidmatan Kami based on the
revised prices and fees, Perkhidmatan Kami will not be renewed when the services in
question come up for renewal.
4.11. If you
fail to make any payment due, you will be advised in writing and we reserve the
right to suspend your user account
or deny your access to all or part of the Platform. If the
payment remains outstanding for more than one (1) calendar month after you have
been advised in writing, we reserve the right terminate the service with
immediate effect.
5.
Information Given to Companies Commission of Malaysia (“CCM”)
5.1. When you
place an Order with us, you are authorising us to give information to CCM so
that they can incorporate a new company/LLP or update an existing company’s/LLP’s
records. Where necessary, this will include personal information relating to
the directors, shareholders and partners that you provide to us. If you are
acting as an agent/representative for a third party, you undertake to comply
with Clause 3.1(b) of this
TOB.
5.2. You
undertake to ensure that all relevant information provided to us which are
to be submitted to the CCM:
5.2.1.
are provided in a pro-active, responsive
and/or timely manner; and
5.2.2.
are correct, complete and not misleading;
5.3. If there
are changes to the information to be provided to the CCM, you
shall notify us immediately.
5.4. We
process your orders on the basis that you have given us full and proper
instructions and, if ordering on behalf of a third party, that you are
authorised to place the order. When you place an order with us you are giving
us the authority to lawfully process your instructions.
6.
Continuous Payment
Authority
6.1. In order
to ensure that you do not experience an interruption or loss of services, most
services offer an automatic-renewal option. The automatic-renewal option
automatically renews the applicable service for a renewal period equal in time
to the most recent service period. Therefore, unless you disable the
automatic-renewal option, we will automatically renew the applicable service
when it comes up for renewal and will take payment from the payment method that
we have on file for you.
6.2. You may
enable or disable the automatic-renewal option at any time. However, should you
elect to disable the automatic-renewal option, and you fail to manually renew
yPerkhidmatan Kami before they expire, you may experience an interruption or loss of
services, and we shall not be liable to you or any third party regarding the
same.
6.3. In
addition, we may participate in “recurring billing programs” or “account
updater services” supported by your banking, e-wallet, debit/credit-card
provider (and ultimately dependent on your bank’s participation). If you are
enrolled in an automatic-renewal option and we are unable to successfully
charge your existing payment method, your banking, e-wallet, debit/credit-card
provider (or your bank) may notify us of updates to your banking, e-wallet,
debit/credit-card number and/or expiration date, or they may automatically
charge your new banking, e-wallet, debit/credit card on our behalf without
notification to us. In accordance with recurring billing program requirements,
in the event that we are notified of an update to your banking, e-wallet,
debit/credit-card number and/or expiration date, we will automatically update
your payment profile on your behalf. We make no guarantees that we will request
or receive updated banking, e-wallet, debit/credit-card information. You
acknowledge and agree that it is your sole responsibility to modify and
maintain your account settings, including, but not limited to:
6.3.1.
setting your renewal options; and
6.3.2.
ensuring your associated payment methods are current
and valid.
6.4. Further,
you acknowledge and agree that your failure to do so may result in the
interruption or loss of services, and we shall not be liable to you or any
third party regarding the same.
6.5. If for any
reason we are unable to charge your payment method for the full amount owed for
the services provided, or if we receive notification of a chargeback, reversal
or payment dispute, or are charged a penalty for any fee we previously charged
to your payment method, you agree that we may pursue all available lawful
remedies in order to obtain payment, including, but not limited to, immediate
cancellation, without notice to you, of any services registered or renewed on
your behalf. We also reserve the right to charge you reasonable administrative
fees or processing fees for:
6.5.1.
tasks we may perform outside the normal scope of our
services;
6.5.2.
additional time and/or costs we may incur in
providing Perkhidmatan Kami; and/or
6.5.3.
your non-compliance with this TOB (as determined by
us in our sole and absolute discretion).
6.6. Typical
administrative or processing fee scenarios include, but are not limited to:
6.6.1.
customer service issues that require additional
personal time or attention; and
6.6.2.
recouping any and all costs and fees, including the
cost of services, incurred by us as a result of chargebacks or other payment
disputes brought by you, your bank or payment-method processor.
6.7. These
administrative fees or processing fees will be charged to the payment method we
have on file for you.
7.
Processing and
Delivery Time
7.1. We provide an online company/LLP incorporation
service for different types of companies/LLP in Malaysia. Forming a private
company limited by shares or an LLP requires the submission of information to
CCM, which you provide to us through the Platform. It is your responsibility to
ensure that the information provided is correct. We do not accept any liability
for errors or omission in the information provided to CCM based on the
information provided by you.
7.2. We do not accept any liability of whatever nature, if
your application for the incorporation of a company or the registration of a LLP
is rejected by CCM because it includes the appointment of a person or persons
that do not meet the legal requirements.
7.3. When you select a name for your company/LLP
registration, we warrant only that we will make an application to CCM for the
registration of that name. We do not warrant that CCM will accept it.
7.4. We will submit your applications to CCM using CCM’s
electronic filing system (MyCOID for company and MyLLP for LLP). If you have completed our application forms
correctly, provided all the information required and if the proposed name of
the company/LLP is not already in use, CCM will normally complete your
application within 3 business days to 2 weeks. All company/LLP incorporation is
completed by and subject to CCM’s operating systems. Delay may arise due to CCM’s
systems failure or other circumstances beyond our control including the
provision of incorrect information to us when placing the order. We do not
accept liability for any losses or damages arising from a delay in completing
your order due to reason not caused by us.
7.5. A copy of the certificate of incorporation, notice of
registration and the share certificate (if applicable) will be uploaded to your
document portal which you can access and download free of charge. Should you
request for additional documents not included in our subscription package, we
shall charge you for the additional fees incurred to obtain such documents. If
you request for such documents to be sent by post, we cannot guarantee such
documents will arrive to you within a specified period especially since this is
subject to the delivery and courier companies’ delivery times.
8.
Pre-Submission Review
We will
review your company/LLP incorporation form prior to submission to CCM to ensure
that your company/LLP incorporation form is submitted without any obvious
errors so that the incorporation of your company/LLP is done without
unnecessary delays. It will also ensure that you do not unknowingly make any
potentially expensive mistakes. The review does not include a review of
documents you upload to our Platform or the spelling of officers’, partners’ and
shareholders’ names or the accuracy of their identification numbers. You are
responsible to ensure the accuracy and completeness of information and
documents you submit and the proper spelling of the individuals’ and entities’ names
or the accuracy of their identification numbers.
9.
Services We Do Not Provide With Any Product
9.1. Perkhidmatan Kami do not include any of the following in
respect of any of the packages and products we offer for sale on our Platform:
9.1.1.
accountancy advisory services;
9.1.2.
tax advisory services;
9.1.3.
audit services
9.1.4.
legal services;
9.1.5.
advice regarding the suitability or adequacy of any
company/LLP you intend
to set up using our Platform for your intended purposes;
9.1.6.
any services offered by the third party service
providers or strategic partners listed on our Platform; and
9.1.7.
any other services not expressly mentioned.
9.2. We
strongly recommend that you seek independent advice before registering a
company/LLP through us. If you have not yet taken
such advice, we would advise you to not proceed with any purchase until you
have done so.
10.
Business Address Service
10.1. By
subscribing to our Business Address Service, without the confidential mail upgrade,
you agree that we will open all your mail/letter, scan it and place the scanned
copy in the document portal we give you or email such copy to you. The document
portal allows you to view, store and download your mail.
10.2. You agree
that we will keep all original copies of your mail/letter for one (1) calendar
month and then securely shred and dispose of it. You can ask for the original
copy within that period. A handling fee will be charged for retrieving the
document from our physical file storage or if you request us to deliver that
mail/letter to you.
10.3. If you
purchase our Business Address Service without registering an account with us,
we will not be responsible for updating your details at CCM, as that would be
your own responsibility.
10.4. When you
subscribe to our Business Address Service, you are authorising us to receive
and process your mail/letter. We are not responsible for losses arising from
any act, omission, neglect, failure or delay by us, our employees or our agents
in the course of receiving, processing, scanning, sorting or forwarding your mail/letter.
10.5. We accept
no responsibility for mail/letter that fails to be delivered to our offices.
10.6. We will
not accept any mail/letter that is not addressed to your company/LLP. We will also not accept any parcel or package not
related to mail/letter (for example, physical products).
10.7. Subscribers
to our Business Address Service may not use the address provided for any legal
agreements, mobile phone contracts or property/vehicle registration purposes,
unless with our express written approval.
10.8. We
reserve the right to cancel our Business Address Service with immediate effect
should we believe you have caused a risk to our reputation, our business, or any
terms under this TOB. Cancellation in such circumstances will not entitle you
to a refund, either in full or in part, of any subscription money paid by you for
the service we are providing. We will immediately apply to CCM to have our
address removed from the public records by submitting the form of notification
of change in the business/ branch address to CCM.
10.9. Multiple
companies cannot use a single address service. Each company/LLP using our address service can only do so if a
separate and appropriate subscription fee has been paid for each company/LLP.
10.10.It is
your responsibility to ensure that you pay for the renewal of yPerkhidmatan Kami
when payment is due. If payment for the renewal of your Business Address
Service has not been made on or before the renewal date, we will terminate the
service and your mail/letter will not be accepted or further processed by us.
If our Business Address Service relates to a company/LLP registered at CCM you will need to advise them of
the change of business address. If you do not, we reserve the right to do so
and will advise CCM by submitting the form of notification of change in the
business/ branch address to CCM.
10.11.If you
wish to arrange to collect the physical copy of your mail/letter, we require two
(2) business days’ notice in order to have the item ready for you. We will also
ask you to present your ID to the reception when collecting the document. The
handling fee relating to the collection of the item will also need settling in
advance.
10.12.Mail/letter
can only be collected during office hours on a business day.
10.13.If you
cancel your subscription to our Business Address Service or you fail to renew
it, we will retain the documents stored in the document portal for three (3) calendar months only. Thereafter
they will be deleted.
11.
Nominee
Director Service
As part of the services we provide on the Platform, you may engage us or
our representative to act as your local nominee director. You understand
that our provision of such services is subject to us entering into a
separate nominee director and indemnity agreement with the nominee director and/or
do any other things as may be required by us or under applicable laws.
12.
Employment Visa
Service
As part of the services we provide on the Platform, you may engage us or
our representative to act as your employment visa consultant. You
understand that our provision of such services is subject to you
entering into a separate consultancy agreement with the consultant and/or
do any other things as may be required by us or under applicable laws.
13.
Refunds
and
Cancellation
13.1. In the
event you purchase a company/LLP incorporation
package with MISHU but change your mind prior to/after our submission of the
company/LLP details
to the CCM, we will refund to you all the monies paid to us (minus the SSM
registration fee if we had already paid to the CCM), provided that your written
request for a refund is received by us within thirty (30) calendar day from the
date of purchase.
13.2. If your
company/LLP incorporation
application is rejected by CCM, you will not be entitled to a refund for any
services purchased from us. We will continue to assist until your company/LLP
is successfully incorporated.
13.3. No refund
shall be given for the cancellation order (including any and all elements or
parts of an order), resulting from your failure to comply with our Know-Your-Client
(KYC) procedures.
13.4. Where you have made advance payments in respect of
the company secretarial/compliance officer services and the services are
terminated in accordance with Clause 15.2 or 15.4 of this TOB, you will be entitled to a refund of the
advance payments made to us which amount is to be pro-rated from the date of
cancellation. No refund will be given in any other circumstances.
13.5. If you
place an Order for a product (such as company seals, share certificate, rubber
stamp) or service with us and you change your mind, provided that you have notified
us within 1 business day of your placing of the order or service and we have
not started working on your Order or placed your Order with a third party, you
will be due for a refund of the fee relating the cancelled element of the Order.
No refund will be given in any other circumstances.
13.6. You
acknowledge and agree that where refunds are issued to your payment method, our
issuance of a refund receipt is only confirmation that we have submitted your
refund to the payment method charged at the time of the original sale, and that
we have absolutely no control over when the refund will be applied towards your
payment method’s available balance. You further acknowledge and agree that the
payment provider, and/or the individual issuing bank associated with your
payment method, establish and regulate the time frames for posting your refund,
and that such refund-posting time frames may range from five (5) business days
to a full billing cycle, or longer.
14.
Confidentiality
14.1. Either
party will not, without the prior written approval of the other party, disclose
information that belongs to the other party that is by its nature confidential.
A party will not be in breach of this clause in circumstances where it is
legally compelled to disclose the other party’s confidential information.
14.2. Each
party will take reasonable steps to ensure that its employees and agents, and
any subcontractors engaged for the purposes of this TOB do not make public or
disclose the other party’s confidential information. Notwithstanding any other
provision of this clause, a party may disclose the terms of this TOB (other
than confidential information of a technical nature) to its related companies,
solicitors, auditors, insurers and accountants. This clause will survive the
termination of this TOB.
15.
Termination
15.1. This TOB will be effective upon your
electronic acceptance and will continue in effect until terminated by you or by
MISHU.
15.2. We may terminate this TOB at any time by giving one (1) calendar month prior written notice if
we cease to support the Platform, which we may do so in our sole and absolute
discretion.
15.3. In addition, this TOB will terminate immediately and
automatically without any notice if you breach or threaten to breach any of the
terms and conditions of this TOB or the Website Terms of Use.
15.4. You may terminate this TOB by
providing a one (1) calendar month notice in writing to MISHU that you no
longer wish to use the services provided by us.
15.5. If you engage in any conducts or activities that MISHU
in its sole discretion believes violate any of the terms and conditions,
violate the rights of MISHU, or is otherwise inappropriate for continued access,
you acknowledge and agree that MISHU may, without any liability on its part:
14.5.1
terminate or
suspend user account or deny your access to all or part of the Platform without
prior notice;
14.5.2
deny your
access through the Platform to any materials stored on the Platform, or to
access third party services, merchandise or information on the Internet through
the Platform,
and MISHU shall have no
responsibility to notify any third-party providers of services, merchandise or
information nor any responsibility for any consequences resulting from lack of
notification.
15.6. Upon termination:
15.6.1. all rights granted to you under this TOB will also terminate;
15.6.2. you must cease all access or use of the Platform; and
15.6.3. MISHU will provide reasonable assistance necessary to
enable the transfer of data, documentation and records to you or a third party
nominated by you at your cost and expense. For this purpose, we will retain all
materials stored in your document portal for a period of three (3) calendar
months after account termination.
15.7. Termination will not limit any of our rights or
remedies at law or in equity.
16.
Indemnity
16.1. You agree to indemnify, defend and hold harmless and
keep indemnified, defended and held harmless MISHU and its licensors, officers,
directors, partners, employees, agents, affiliates, successors and assigns from
and against any and all losses, damages, liabilities, deficiencies, claims,
actions, judgments, settlements, interest, awards, penalties, fines, costs, or
expenses of whatever kind, including reasonable advocates and solicitors’ fees,
arising from or relating to your use or misuse of the Platform or the placement
or transmission of any message, information, software or other materials
through the Platform by you or users of your user account or related to any breach
of this TOB by you or users of your user account.
17.
Disclaimer of
Warranties
17.1. The Platform is provided to you on an “as is where
is” basis and with all faults and defects without warranty of any kind. To the
maximum extent permitted under applicable law, MISHU, on its behalf and on
behalf of its affiliates and its service providers, expressly disclaims all:
17.1.1. conditions and warranties, whether express, implied,
statutory or otherwise, with respect to the Platform including but not limited
to the commercial and non-commercial merchantability, quality, fitness,
purpose, title, non-infringement and any implied terms and warranties of the
Platform;
17.1.2. representations, by any means, as to the
availability, accessibility, uninterrupted access, operation, performance of
the Platform or any other products or services accessed via the Platform; and
17.1.3. indemnification arising from course of dealing or
course of performance in connection with this TOB.
17.2. No advice or information, whether oral or written,
obtained by you from the Platform or any materials or content available through
the Platform will create any warranty that is not expressly stated in this TOB. You assume all risk for any damage that may result
from your use of or access to the Platform, and any material or content
available through the Platform.
17.3. MISHU does not warrant the accuracy, completeness or
adequacy of any information or material contained on the Platform. Nothing
contained on the Platform are intended to be used as professional advice, nor
as substitute for your own professional advice.
17.4. Without limitation to the foregoing, we provide no
warranty or undertaking, and make no representation of any kind that the
Platform will meet your requirements, achieve any intended results, be
compatible or work with any other software, applications, systems or services,
operate without any interruption, meet any performance or reliability standards
or be error free or that any errors or defects can or will be corrected.
18.
Limitation of
Liability
18.1. In no event will MISHU, its affiliates and their
respective licensors, shareholders, members, directors, partners, officers,
employees, attorneys, agents, representatives, suppliers or contractors be
liable for any incidental, direct, indirect, special, punitive, consequential
or similar damages or liabilities whatsoever (including, without limitation,
damages for loss of data or exposure of data, information, revenue, profits or
other business or financial benefit) arising out of or in connection with the
Platform, any performance or non-performance of the Platform, or any other
product, service or other item provided by or on behalf of MISHU.
18.2. You agree that MISHU has no liability or
responsibility for the deliberate or accidental deletion, failure to store,
theft, misappropriation or loss of, by any means, of any data due to your
actions in using the Platform including failure to apply strong passwords.
18.3. Access to, and use of, the Platform are entirely at
your own discretion and risk. You understand and agree that you will use the
Platform, and use, access, download, or otherwise obtain materials or content
through the Platform, at your own discretion and risk, and that you are solely
responsible for any damage to your property (including your computer system or
mobile device used in connection with the Platform), or the loss of data that
results from the use of the Platform.
18.4. MISHU has no special relationship with or fiduciary
duty to you or any other third party. You agree and acknowledge that you are
solely responsible for conducting a full and diligent review of any and all
legal, accounting, regulatory or tax related implications that may result from
your use of the Platform and it is your responsibility to ensure that you order
the service or combination of services and goods on the Platform which suits
your needs. Prior to accessing the Platform, we recommend that you consult with
a licensed professional who is fully aware of your circumstances.
18.5.
MISHU will not be held
liable for any and all losses, damages, costs and expenses which you may incur resulting
from or in connection with a contract entered into between you and a third
party service provider listed on our Platform. The quality of the goods and/or
services provided by the third party service provider listed on our Platform is
the full responsibility of the third party service provider that provides the
goods or services to you. Under no circumstances will MISHU accept any
liability for and/or in connection with the goods and/or services provided by
the third party service provider or any other actions or omissions on the part
of the third party service provider. Any complaints related to the goods /or
services or the third party service provider should therefore be addressed to
the third party service provider directly.
18.6.
Should you Hubungi Kami
regarding any complaint, claim, demand, action, dispute, proceedings or suits against
a third party service provider listed on our Platform, we will refer such complaint,
claim, demand, action, dispute, proceedings or suits to the relevant third
party service provider. Should a third party service provider listed on our
Platform Hubungi Kami regarding any complaint, claim, demand, action, dispute, proceedings
or suits against you, we will refer such complaint, claim, demand, action, dispute,
proceedings or suits to you.
18.7. In the event that any
limitation or exclusion of
liability in this TOB is not
enforceable, our total liability for any claim arising out of or relating in
any manner to the access and/or use (or inability to access and/or use) of the
Platform are limited to our retainer fee paid by you to us during the twelve
(12) calendar months period preceding the date on which the claim arose. We do
not exclude liability for death or personal injury caused by our negligence,
fraud or fraudulent misrepresentation, or any other liability which may not be
excluded by law.
19.
Right to Investigate
19.1. We reserve the right in our sole discretion to
investigate complaints, actual, potential or alleged violations of this TOB or other agreements applicable to us and any actual,
potential or alleged violations of applicable law, but we undertake no
obligation to do so.
19.2. In connection with any such investigation, we may
take any action we deem appropriate including, without limitation, reporting
any suspected unlawful activity to law enforcement officials, regulators or
other third parties, and disclosing any information necessary or appropriate to
such persons relating to your profile, e-mail address, usage history, posted
materials, IP addresses and traffic information.
19.3. Periodically, we are obliged to undertake due
diligence checks on the clients to which we provide ongoing services. Should
any of our checks result in the discovery of illegal or unethical, we reserve
the right to terminate Perkhidmatan Kami, without notice and without a refund.
20.
Force Majeure
You
acknowledge and agree that we have no control over the availability of the
Platform on a continuous or uninterrupted basis, and that we assume no
liability to you or any other party with regard thereto. We are not responsible
or liable for failure or delay of performance caused by act of war, hostility,
or sabotage; act of God; electrical, internet or telecommunication shortage or
outage; interruption or failure of telecommunication or digital transmission
links; hostile network attacks; network congestion; national, state, or local
government restrictions or intervention; pandemic, epidemic or any other event
that is beyond our reasonable control, whether foreseeable or not.
21.
Invalidity and
Severability
21.1. If any provision of this TOB is or may become under any written law, or is found
by any court or administrative body or competent jurisdiction to be, illegal,
void, invalid, prohibited or unenforceable then:
21.1.1. such provision shall be ineffective to the extent of
such illegality, voidness, invalidity, prohibition or
unenforceability;
21.1.2. the remaining provisions of this TOB shall remain in full force and effect; and
21.1.3. the parties shall use their respective best
endeavours to negotiate and agree a substitute provision which is valid and
enforceable and achieves to the greatest extent possible of the economic, legal
and commercial objectives of such illegal, void, invalid, prohibited or
unenforceable term, condition, stipulation, provision, covenant or undertaking.
22.
Assignment
22.1. You may not assign, transfer or sub-contract any of
your rights and obligations under this TOB to any other person without our prior written
consent.
22.2. We may assign, transfer or sub-contract all or any of
our rights and obligations under this TOB at any time without your consent to:
22.2.1. our subsidiary or related/affiliated company;
22.2.2. an acquirer of our equity, business or assets; or
22.2.3. a successor by merger.
23.
Ownership and
protection of data files
23.1. Title to
and all intellectual property rights in the software, Platform, standard
checklists, forms, templates, documentation, videos, e-books, e-guides, training
and marketing materials developed or prepared by us remain our property.
23.2. Title to
and all intellectual property rights in any documents or data files uploaded by
you or to our document portal or developed or prepared for you remain your
property.
24.
Waiver
If a party
waives any right under this TOB, it must be done in writing. No failure to exercise, and no delay in
exercising, on the part of either party, any right or any power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or power hereunder preclude further exercise of that or any other right
hereunder. A waiver of a breach of a term in this TOB does not operate as a waiver of another breach of
the same term or any other term.
25. Equitable Remedies
You
acknowledge that the rights granted, and obligations made under this TOB to us are of a unique and irreplaceable nature, the
loss of which shall irreparably harm us, and which cannot be replaced by
monetary damages alone. As such, we shall be entitled to injunctive or other
equitable relief (without the obligations of posting any bond or surety or
proof of damages) in the event of any breach or anticipatory breach by you.
26.
Governing Law and
Jurisdiction
This TOB is governed
by, and construed in accordance with, the laws of Malaysia. The courts of
Malaysia are to have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this TOB.
27.
Entire Agreement
This TOB, our Website Terms of Use and our Privacy Policy constitute the entire
agreement between you and MISHU with respect to the Platform and supersede all
prior or contemporaneous understanding and agreements, whether written or oral,
with respect to the Platform. This TOB creates no third-party beneficiary rights.
28.
Electronic
Communication
28.1. For contractual purposes, you consent:
28.1.1. to receiving communications from us in an electronic
form via the last email address you have submitted to us; and
28.1.2. that any terms and conditions, agreements, policies,
notices, disclosures and other communications that we provide to you
electronically satisfy any legal requirement that such communications would
satisfy if they were in writing.
28.2. Notice will be
deemed given twenty (24) hours after:
28.2.1. the e-mail is sent to the last email address that you
have provided to us; or
28.2.2. the notice is posted on the Platform.