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Last Updated: 15 June 2021
Cyngus Technologies Sdn Bhd (Company No. 747223-D) a company incorporated in Malaysia under the Companies Act 1965 and having its business address at Level 3, Tower 1, Avenue 5, No.8 Jalan Kerinchi, Bangsar South, 59200 Kuala Lumpur (hereinafter referred to as “Cyngus”)
The Customer by virtue of the Customer’s registration to the Services through the applicable Company website and is effective (hereinafter referred to as the “Customer”) as of the date of the Customer’s registration to the Services (the “Effective Date”).
By accepting this Agreement, the Customer confirms that they have read, understood and accepted its contents.
A. WHEREAS Cyngus Technologies Sdn Bhd (Company No. 747223-D) is a private limited company incorporated in Malaysia under the Companies Act 1965 with its business address at Level 3, Tower 1, Avenue 5, No.8 Jalan Kerinchi, Bangsar South, 59200 Kuala Lumpur.
B. Cyngus specialises in data-driven digital marketing and have launched ViSight Marketing as a Service (hereinafter referred to as “MaaS”).
C. MaaS assists marketing teams plan and manage asset creation activities i.e landing page creation, campaign design, lead nurturing, lead scoring, and analytics.
D. The Customer is desirous to engage the service provided by Cyngus being the Subscription Service (defined below) and Cyngus is willing to accept the engagement to provide the Subscription Service, services in accordance with the terms and conditions contained herein.
NOW IT IS HEREBY AGREED AS FOLLOWS: –
1.1 In this Agreement, except where the context or subject matter otherwise requires
(a) “Act” Means the Personal Data Protection Act 2010
(b) “Add-Ons” Means additional services that are not within the original scope of work outlined in the Invoice and services not provided in the respective Subscription Plan subscribed by the Customer.
(c) “Agreement” Means this Agreement entered into between the Parties hereto on the date First Stated in this Agreement.
(d) “Billing Period” Means the period of thirty (30) calendar days, from the date of the Invoice. The Billing Period shall only be applicable in the case of manual payment, whereas for automatic recurring payment this Billing Period shall not be applicable.
(e) “Business Day” Means a day (other than a Saturday or Sunday, and Public Holidays) between 8.30 a.m. and 5.30 p.m. on which banks and financial institutions are open for business in Malaysia but exclude any day when business are asked by the relevant authorities to close for whatsoever reasons;
(d) “Cyngus” Means Cyngus Technologies Sdn Bhd (Company No. 747223-D) is a private limited company incorporated in Malaysia under the Companies Act 1965 with its business address at Level 3, Tower 1, Avenue 5, No. 8 Jalan Kerinchi, Bangsar South, 59200 Kuala Lumpur, Malaysia.
(e) “Customer” Means the person referred to in this Agreement as the Customer who have subscribed for the Subscription Service.
(f) “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential. Confidential Information includes all information concerning the Disclosing Party’s customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information doesn’t include any information that
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, or
(iii) was received from a third party without breach of any obligation owed to the Disclosing Party, or
(iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
(g) “Customer Materials” Means any relevant marketing or promotional material that the Customer shall furnish to Cyngus that aids in carrying out the services in the Subscription Service, including but not limited to Customer logo, Customer company slogan, Customer log-in credentials for relevant channels and third party sites, Customer branding information and guidelines, and any relevant documents or creative materials
(e) “Initial Setup Fee” Means the amount that is applicable to be paid by the Customers to Cyngus being a one-off payment during the initial period of subscribing to the Subscription Service to support the onboarding and registration process based on the Subscription Plan subscribed by the Customer for the particular term of this Agreement SUBJECT ALWAYS to the Terms and Conditions herein contained.
(f) “Invoice” Means the fees and or charges that is charged and/or billed to the Customer for the subscription of the Subscription Service and any add-ons (as the case maybe).
(g) “Late Payment Interest” Means the rate of one point five percent [1.5%] per month calculated on a monthly basis on such part of the Invoice as remains unpaid calculated from the day next after the expiry of the thirty (30) calendar days, from the date of the Invoice for the Service to the date of payment for the Subscription Service or such part thereof as remains unpaid, based on the actual number of days elapsed
(h) “Monthly Subscription” Means the Customer has opted to pay for the Subscription Service on a monthly basis. This amount is subject to the Subscription Plan chosen and an Initial Setup Fee.
(i) “Monthly Subscription Term” means the term of the Monthly Subscription for that particular Month of subscription.
(i) “Personal Information” means any credit or debit card numbers; financial account numbers or wire instructions; government issued identification numbers (i.e as NRIC, passport numbers, address and/or anything of similar nature) including but not limited to any other information that can be deemed as Personal Information, stored in our database for the sole purpose of carrying out the Subscription Service or as ascribed by the Act, relating to an identified or identifiable individual, body or corporate as ascribed by the Act.
(k) “Recurring charges” Means the automatic monthly, or even yearly, recurring charges in the case that the Customer has chosen to pay via credit or debit card on the applicable website.
(l) “Subscription Fee” Means the amount the Customer pays for the Subscription Service.
(m) “Subscription Service” Means the tools and platforms that the Customer have subscribed to under the Subscription and any Value Add-Ons (as the case maybe) or others that are made available to the Customer by Cyngus, and are developed, operated and maintained by Cyngus. The Subscription Service can be classified according to the payment frequency: as Monthly Subscription, or Yearly Subscription, and the Subscription Plan chosen.
(n) “Term” Means a period of one (1) month from the date of activation of the Subscription Service or a period of one (1) year from the date of activation of the Subscription Service (as the case maybe).
(o) “Third Party Sites” Means third-party websites utilised to carry out the purpose of the Subscription Service, including but not limited to Google, Facebook, and Shopify. All Third Party Sites used with relation to the Subscription Services shall serve only to implement the services required.
(p) “Users” means the Customer’s employees, representatives, consultants, contractors or agents who are authorised to use the Subscription Service for the Customers benefit and have unique user identifications and passwords for the Subscription Service
(q) “Tollfree” Means the Telekom Malaysia Tollfree and ViSight Reporting. Cyngus provides reports that complement the tollfree service. Under the Subscription Service, the Customer receives a tollfree number and will be able to access the ViSight Reporting Portal.
(r) “ViSight Reporting Portal” Means the dashboard which the Customer will be able to have access to, to refer to the Tollfree daily and monthly reports. The URL is https://visight.tmone.com.my/.
(s) “Yearly Subscription” Means the Customer has opted to subscribe to the Subscription Service for a period of twelve (12) months and will pay the yearly amount upfront.
(t) “Yearly Subscription Term” Means the term of the Yearly Subscription for that particular Year of subscription.
1.2 The Headings in this Agreement shall not be taken into consideration in the interpretation of this Agreement. References to clauses, sub-clauses and party are to be construed as references to clauses, sub-clauses, paragraphs, sub-paragraphs and party to and in this Agreement.
1.3 All references to provisions of statutes include such provisions as modified or re-enacted.
1.4 Words applicable to natural persons include any body or persons, company, corporation, firm or partnership and vice versa. Words importing the masculine gender shall include the feminine and neuter gender and vice versa. Words importing the singular number shall include the plural number and vice versa.
1.5 Words denoting an obligation include an obligation to procure that it be done and words placing a party under a restriction include an obligation not to permit or allow infringement of the restriction.
2. PURPOSE OF THE AGREEMENT
The purpose of this Agreement is for the parties hereto to regulate their relationship with each other vis-à-vis their respective participation and to ensure that the parties carry out their respective duties and obligations on a sound commercial basis and in the spirit and in the manner hereinafter appearing.
3. REPRESENTATION AND WARRANTIES
Each party hereby represents to the other that it has the necessary right, power and authority to enter into this Agreement and has the legal power to do so, and represents and warrants to the other that :-
(a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms;
(b) no authorisation or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement; and
(c) the execution, delivery, and performance of this Agreement does not and will not violate the terms and conditions of any other agreement to which it is a party or by which it is otherwise bound, or any applicable law or regulation.
4. ACCESS TO SUBSCRIPTION SERVICE
4.1 During the Subscription Term in accordance with the Subscription Plan subscribed by the Customer, Cyngus shall provide the Customers’ and its Users access to use the Subscription Service in accordance with the terms and condition contained in this Agreement.
4.2 The Customer hereby agrees, acknowledge and accepts that at Cyngus sole discretion, Cyngus may provide some or all elements of the Subscription Service through Third Party Sites.
4.3 The Customer may provide access and use of the Subscription Service to its Users provided that, all such access, use and receipt by the Users is subject to and in compliance with this Agreement and the Customer shall at all times remain liable for its Users compliance with the terms and conditions contained herein.
The Customer may opt to subscribe for additional features of the Subscription Service by placing an additional order, wherein the same shall be subject to additional charges.
6. SERVICE UPTIME COMMITMENT
6.1 Cyngus shall provide an uptime of 99.5% on the E-commerce platform.
6.2 Cyngus shall provide an uptime of 99% on the tollfree line.
6.3 All new Customer requests will be responded to within two (2) Business Days when the same submitted via our channels.
6.4 Resolving requests may take longer, depending on scope and budget. If the Customer requires a faster turnaround, the Customer should submit via the assigned account manager through WhatsApp to expect an answer approximately around five (5) hours during Working Hours.
6.5 Any faults must be reported by e-mail that should include the following details:
(a) Customer name;
(b) Fault details, as well as any screenshots that may aid in resolving the fault;
(c) Consequences of the fault; and/or
(d) Time/date of fault
Response shall be within one (1) Business Day, however resolution of the fault will be at Cyngus’ discretion of urgency.
7. NO FINANCIAL INFORMATION
7.1 The Customer hereby acknowledges that the Subscription Service is not designed to process or manage any Financial Information (save and except as disclosed herein) and accordingly the Customer hereby agrees, undertakes and covenant not to use the Subscription Service to collect, manage or process Financial Information and/or any Personal Information as defined in the Act.
7.2 Failure by the Customer to comply strictly with Clause 7 herein shall be deemed to be a material breach of the Agreement and shall entitle Cyngus to terminate the Agreement pursuant to Clause 18 below.
7.3 The Customer hereby agrees to indemnify and keep Cyngus indemnified at all times in the event of any failure, negligence, omission and/or willful default on the part of the Customer.
8. CYNGUS RESPONSIBILITIES
8.1 Cyngus will perform services for the Customer pursuant to the Subscription Plan subscribed by the Customer including the Add-Ons additional feature subscribed by the Customer, in connection with the planning, provision, creation and/or placing or branding, research, advertising, marketing, consulting, creative and/or digital services for the Customer, during the Subscription Term.
8.2 Cyngus shall submit to the Customer for the Customer’s approval all elements of any materials to be produced or published in connection with the Subscription Service including the Add-Ons additional feature subscribed by the Customer, including, but not limited to, all creative content such as articles, banners, photography and e-commerce platform set-up.
8.3 Cyngus reserves the right to schedule downtime to the Subscription Services or any other services including the Add-Ons for any maintenance or upgrading work upon providing the Customer three (3) days prior written notice (except for Emergency Circumstances) through the contact information and email address provided by the Customer to Cyngus. It shall be the duty of the Customer to notify Cyngus in writing in the event of any change of the contact information provided to Cyngus.
9. CUSTOMER RESPONSIBILITIES
9.1 The Customer shall appoint or assign a dedicated employee to be responsible to fully realise the full value of the Subscription Service.
9.2 Responsibilities of the Customers employee appointed or assigned to be responsible to fully realise the full value of the Subscription Service may include but not limited to collaborating on marketing programmes with Cyngus; deciding on content creation calendar; aiding in the implementation of some marketing activities, working closely with Cyngus’ marketing and tollfree team, and other materials; i.e attending regular success review meetings; as well as helping in the implementation of the Subscription Service in any way necessary.
9.3 The Customer agrees to do all acts, deeds and things including to furnish Cyngus all relevant Customer Materials and assistance to aid in the set-up, planning and implementation of the Subscription Service.
9.4 The Customer shall be fully responsible for its use of the Subscription Service subject always to any, fault, negligence, omission, willful default, and/or failure on the part of Cyngus and the Customer shall not use or permit the use of the Subscription Service for any unlawful, illegal, improper or unauthorised purpose and shall hold Cyngus harmless from any breach of this covenant by the Customer.
9.5 The Customer hereby agrees, undertake and covenant that the Customer shall
(a) ensure that the Subscription Service is utilised by the Customer and/or its Users only and shall not be shared, sub-let, and/or assigned to any third party save and except with the written consent of Cyngus;
(b) pay the subscription fee within thirty (30) days from the date of the Invoice in accordance with the terms and conditions contained herein namely Clause 16 and 17 respectively;
(c) utilise all services and products provided under the Subscription Plan subscribed by the Customer to its fullest capacity solely to obtain quality leads and optimising the sales conversion of the Customer;
(d) use the subscription of the Subscription Service strictly as authorised by Cyngus and in accordance with the terms and conditions contained herein, including the strict compliance of Clause 8 above;
(e) not to alter, modify, replace or temper with the Subscription Service for any reason whatsoever save and except the same was conducted by Cyngus Authorised Personnel and/or the consent in writing by Cyngus is obtained;
(f) install, operate, repair, maintain or use the Subscription Service in accordance with Cyngus instructions and directions;
(g) not to cause any issue(s) relating to software bugs or viruses;
(h) monitor and resolve congestions; and
(i) ensure the proper use of the Subscription Service by the Customer and its Users without any element of misuse, abuse, negligence, fault, default and/or anything of similar nature.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All rights, title and interest to all equitable interest, passing off, intellectual property and/or trademarks contain in or form part of any marketing or course materials relating to the Subscription Service or MaaS (as the case maybe) shall belong exclusively to Cyngus or where Cyngus is not the proprietary rights thereto, has been authorised by legal proprietors to grant the rights of use to any third party.
10.2 The Customer is granted by Cyngus the use of the intellectual rights in the Subscription Service or MaaS (as the case maybe) marketing materials solely for the purposes provided in this Agreement. Any use of the Subscription Service or MaaS (as the case maybe) and/or any relating documents (including by not limited to electronic forms) by the Customer other than for the purposes as provided in this Agreement shall deemed to be a material breach of the Agreement and shall entitle Cyngus to terminate the Agreement pursuant to Clause 18 below.
11.1 Cyngus will assign the requested and approved tollfree numbers under Cyngus’ ownership to the Customer under the terms and conditions listed herein.
11.2 Upon submitting all the information required for the tollfree number, the Customer will be required to submit the Answerpoint Authorisation Letter, to be provided to the Customer by Cyngus. Activation of the Tollfree Number shall be within ten (10) Business Days of Cyngus receiving the Answerpoint Authorisation Letter.
11.3 Using the Customer’s own efforts, the Customer is permitted to market the assigned tollfree number during the Subscription Term within the terms and conditions listed here.
11.4 By subscribing to a Tollfree Number and having access to the ViSight Reporting Portal, the Customer agrees to comply to the terms and conditions listed within the ViSight Reporting Portal.
12. TOLLFREE – NETWORK PROTECTION
12.1 In the event the Customer is not able to access the Tollfree Number due to congestion, poor quality of service, repeated calls failure or calls held up (collectively referred to as “congestion”) at the Customer’s access line, the Customer shall increase the access lines to remedy the congestion.
12.2 The subscription of additional lines shall be subject to availability. The Customer agrees that it is its sole responsibility to monitor and resolve the said congestion.
12.3 The Customer hereby undertake its obligations under this Agreement, namely Clause 12 and 9.5(h) above and at any time it is notified by Cyngus of such congestion.
12.4 Without prejudice to any other rights of Cyngus and without liability to the Customer, in the event of such congestion, Cygnus shall have the right, but not obliged to, to undertake such traffic management programmes on the network, including but not limited to, call capping and/or temporary blocking of access to the Tollfree Number, as it deems fit to reduce such congestion.
12.5 The Customer acknowledges that Cyngus is providing the Tollfree Number to the Customer based on its current network as at the date hereof. Notwithstanding anything to the contrary, both Cyngus and the Customer agrees that Cyngus may, at its absolute discretion, from time to time, migrate the provisioning of the Tollfree Number on its current network to such other network as Cyngus deems fit. The Customer further agrees that the Customer shall be solely responsible for all cost and expenditure arising from or as a result thereof, including but not limited to, the relocation of the Customer’s equipment.
13. TRANSFER OF OWNERSHIP – TOLLFREE NUMBER
13.1. Upon termination or expiration of this Agreement (as the case maybe), The Customer has an option to a transfer of ownership of the Tollfree Number to the Customer, subject to the terms and conditions to be mutually agreed by the parties thereto.
13.2 In the case that the Customer takes over ownership of the Tollfree Number, the Customer will have to commence a twelve (12) month contract with the tollfree provider, assisted by Cyngus.
14. E-COMMERCE REVENUE SHARING
14.1 The Customer hereby agrees to enter into revenue sharing model with Cyngus from profits generated from the e-commerce platform created under this Subscription Service.
14.2 Every transaction shall be shared in the agreed proportions listed in the E-Commerce Monthly Invoice, detailing said agreed proportions.
15. PACKAGES AND PRICING
15.1 All charges stated in the Invoice shall be paid only in Malaysian Ringgit (MYR).
15.2 Any and all details of the Subscription Service, including features and pricing for the Customer shall be listed in the Invoice for reference.
15.3 In the event, the Customer wishes to upgrade the Subscription Plan, the Customer shall firstly, obtain the written consent of Cyngus one (1) month prior to the intended upgrade, wherein consent for the said application shall be at Cyngus’ sole discretion.
15.4 The Customer hereby agrees that the Customer shall top up the remaining Initial Setup Fee for the upgrade of the Subscription Plan.
15.5 In the event, the Customer wishes to downgrade the Subscription Plan, the said downgrade shall only be applicable from the Superstar Subscription Plan to the Growth Subscription Plan.
15.6 The Customer acknowledges and agrees that in the event of a downgrade of the Subscription Plan, the Initial Setup Fee shall be absolutely forfeited as agreed liquidated damages.
15.7 The Customer shall firstly obtain the written consent of Cyngus before the preceding Billing Period of the intended month for the downgrading of the Subscription Plan, wherein consent for the said application shall be at Cyngus’ sole discretion.
15.8 The Customer hereby agrees that Cyngus may revise the charges at any time in the event of the following:-
(a) the Services herein has been modified, customised or changed pursuant to the request of the Client or regulatory bodies whether due to business needs or regulatory compliance from time to time, or
(b) by giving to the Customer at least one (1) months’ written notice before the expiry of the then current term of its intention to revise the charges. In the event that the Parties fail to agree on the revised charges, this Agreement shall be deemed terminated upon expiry of the respective term.
16. MONTHLY SUBSCRIPTION –
16.1 The Customer shall pay to Cyngus an Initial Setup Fee for registration purposes and to kick-start the process prior to the commencement of the Subscription Service. The Initial Setup Fee is subject to the respective subscription plan chosen.
16.2 The Customer shall make monthly payments in advance, being automatic recurring monthly charges, before the start of a new Billing Period cycle. Should the automatic recurring monthly charges fail for any reason whatsoever, Cyngus shall issue a manual invoice and delivery the same to the Customer.
16.3 All manual invoices shall be paid by Customer within the Billing Period.
16.4 The parties hereby agree that in the event the Customer fails to make the full payment within the Billing Period the Customer hereby agrees that Cyngus shall charge the Customer Late Payment Interest.
16.5 The Monthly Subscription Term shall be for a period one (1) month from the date of activation of the Subscription Service, with automatic renewal for an additional thirty (30) days to allow for the Billing Period of the following month.
16.6 In the event the Customer intends to renew this Agreement for an extended period (on a monthly basis), the Customer shall forthwith advance payment for the following month in accordance with Clause 16.5 above SUBJECT ALWAYS to the Customers’ Subscription Plan.
16.7 The Customer shall be deemed to have terminated this Agreement if the same is not renewed in accordance with Clause 16.5 and 16.6 above.
16.8 In the event the Customer terminates this Agreement within a period of six (6) months from the date of activation of the Subscription Service, thereafter, decides to resubscribe the Subscription Service, the Customer shall repay the Initial Setup Fee.
17. YEARLY SUBSCRIPTION
17.1 Simultaneously with the execution of this Agreement, the Customer shall pay to Cyngus the total sum payable for a period of one (1) year in accordance with the respective Subscription Plan, subscribed by the Customer to proceed with the registration for the Subscription Service and kick-start process prior to the commencement of the Subscription Service.
17.2 SUBJECT TO Clause 15.8 above, the Customer under the Yearly Subscription, maybe entitled to the following:-
(a) a five percent (5%) discount from the total sum payable for a period of one (1) year in accordance with the respective Subscription Plan, subscribed by the Customer; and
(b) Waiver of the Initial Setup Fee.
17.3 The Yearly Subscription Term shall be for a period of twelve (12) months from the date of activation of the Subscription Service.
17.4 Cyngus may at its absolute discretion and further SUBJECT TO the terms and conditions to be mutually agreed by the parties hereto, renew the term for an extended period of twelve (12) months for the subscription of the Subscription Service.
18.1 Either Party to this Agreement may terminate this Agreement without cause by way of written notice delivered to the other Party’s last known address as stated herein or as informed hereafter (as the case maybe) providing the other Party a ten (10) days termination notice before the expiry of the respective Term.
18.2 Cyngus may at its absolute discretion, terminate this Agreement immediately if:
(a) any breach of the terms and conditions contained in this Agreement remains uncured wherein the same shall be deemed as failure of the Customer to remedy the breach of default complained of after a period of seven (7) calendar days from the date of the notice given by Cyngus to the Customer or any other extension of time as agreed by Cyngus,
(b) any step(s) taken or an order is made for bankruptcy or winding up of the Customer or a petition for bankruptcy or winding up, as the case may be, is presented against the Customer;
(b) any material breach by the Customer of the terms and conditions contained herein
(e) Cyngus reasonably is of the opinion that the Customer is acting or has acted in a way that has or may be detrimental and/or negatively reflects on or affects Cyngus, Cyngus’ customers, or Cyngus’ affiliates.
18.3 Cyngus shall not knowingly, at any stage, provide the Subscription Service to a company that is deemed to be involved in “non-halal” business, including but not limited to gambling, alcohol, and/or money lending. If the Customers business is involved in any of the aforementioned activities or related “non-halal” activities, and does not disclose the nature of business to Cyngus at any stage, Cyngus reserves the right to immediately terminate the Subscription Service by notifying the Customer. The Customer agrees to forfeit any payment and acknowledges that no refund shall be received.
18.4 The Customer hereby agrees that by signing up for the Subscription Service, under the Monthly or Yearly Subscription, and once payment has been made, the Customer hereby forfeits any paid amount to Cyngus under any circumstance. This may include but is not limited to early termination, change of campaign plans, etc.
19.1 The Receiving Party will:
(a) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care,
(b) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Customer Terms of Service,
(c) not to disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by Cyngus to provide some or all elements of the Subscription Service) and
(d) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes in line with this Terms of Service and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
19.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any relevant law, statute, rule or regulation, or any legal process; provided, however, that
(a) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; and
(b) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
The Customer may not assign, transfer or sub-contract the Subscription Service or the performance of its obligations hereunder in whole or in part to any third party without Cyngus’s prior written consent except to any related corporation.
21. NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
The Customer shall indemnify and hold Cyngus, its agents, resellers, suppliers harmless in the event:
(a) any data that is transferred from the Customer for purposes of the Service infringes a third party’s intellectual property right or in any other way is in violation of any laws; or
(b) the Customer uses the Service in a manner that is unlawful, illegal, fraudulent or harmful; or
(c) any personal data transferred by the Customer to or obtained by or processed by Cyngus for purposes of the provision of the Services is in violation of any applicable laws.
23. LIMITATIONS OF LIABILITY
Notwithstanding any provisions in this Agreement and with the exclusion of the liabilities under the Section of ‘Indemnification’ within this Agreement, Cyngus’ liability under this Agreement is limited to an amount equivalent to the Subscription that the Customer has paid for the Services during the last one (1) month preceding a claim. Cyngus shall under no circumstances be liable for any losses including loss of profit, expenses disbursed in vain, loss of business opportunities, loss of turnover, loss of data, or any consequential or indirect losses and damages of any kind.
24. FORCE MAJEURE
Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
The following sections shall survive the expiration or termination of this Agreement: ‘CONFIDENTIALITY, ‘INDEMNIFICATION, and ‘LIMITATIONS OF LIABILITY’.
26. RESOLVING DISPUTES AND GOVERNING LAW
26.1 Should any dispute arise between Cyngus and the Customer regarding the subject matter of this Agreement, its construction or its effect and the dispute or difference cannot be settled, either party may give to the other party notice of the dispute or difference and both Cyngus and the Customer shall use their best efforts to promptly and adequately resolve such dispute or difference, through amicable consultation, conciliation or other agreed upon means.
26.2 Nothing herein however, shall be construed as restricting any party from enforcing its rights under this Agreement by the usual legal proceedings in Courts.
26.3 This Agreement shall be governed by and construed in accordance with the laws of Malaysia.
26.4 This Agreement is made in English. In the event of a dispute as to the terms of this Agreement due a translation, the English version shall prevail.
27.1 Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered
(a) in person,
(b) by certified mail, postage prepaid, return receipt requested,
(c) by a commercial overnight courier that guarantees next day delivery and provides a receipt,
(d) by electronic mail, by which the receipt shall be either the day of receipt, so long as it is a Business Day.
27.2 The relevant information is as follows:
Address: Cyngus Technologies Sdn Bhd, Level 3, Tower 1, Avenue 5, No. 8 Jalan Kerinchi, Bangsar South, 52900 Kuala Lumpur, Malaysia.
E-mail: [email protected]
Phone number: 1800-22-2020
Any notices sent from Cyngus to the Customer will be provided according to the information received.
28. AMENDMENTS TO THIS AGREEMENT
28.1 Cyngus may modify any part of this Agreement by posting a revised version. The revised version will become effective and binding the next Business Day after it is posted. A notice of this revision will be provided to you by e-mail.
28.2 If you do not agree with any modification, you must notify us in writing within thirty (30) calendar days after we send notice of the revision. Once receiving this notice, your Subscription Service will continue under the terms and conditions of the Agreement prior to modification until the next renewal date, after which the modifications will apply.
29.1 This Agreement replaces any previous agreement, representation, warranty or understanding between the parties concerning the subject matter and contains the entire agreement between the parties.
29.2 A Party waives a right under this Agreement only if it does so in writing and does not waive a right simply because it fails to or delays exercising the right, or only exercises part of the right.
29.3 Each party shall pay its own legal costs and expenses for the negotiation, preparation, completion of this Agreement.
29.4 Nothing in this Agreement will be deemed to require Cyngus to undertake any act or perform any services which in its good faith judgement would be misleading, false, libelous, unlawful, in breach of contract, or otherwise prejudicial to Customer’s or Cyngus’ interests.
29.5 Cyngus and the Customer agree that no joint venture, partnership, employment or agency relationship exists between us.
30. PRIVACY NOTICE
It is “HEREBY EXPRESSLY AGREED BY THE PARTIES HERETO THAT THE PRIVACY NOTICE” annexed hereto SHALL FORM PART OF THIS AGREEMENT and that should there be an inconsistent or repugnant term or terms, the term or terms contained and inserted in “PRIVACY NOTICE” herein referred shall prevail over the same contained in clauses A to C of the General Conditions.
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