MERCHANT AGREEMENT

BY INDICATING YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN, YOU HEREBY AGREE TO THE FOLLOWING TERMS AND CONDITIONS FOR THE USE OF THE SERVICES PROVIDED BY M ADVANCE BUILDER SDN BHD (“MAB”) (Company Registration No. 1148549-X) of D10-03, SUNWAY NEXIS, JALAN PJU 5/1, KOTA DAMANSARA, SELANGOR DARUL EHSAN.

WHEREAS:

MAB operates the Portal and the Merchant is desirous in using the Portal and subscribing to the services provided by MAB. 

The parties agree in consideration of the mutual promises contained in this agreement

1. Definitions and interpretation

1.1 In this agreement  –

Agreement means this agreement.

Business Day means a day on which banks are open for business in Kuala Lumpur except a Saturday or Sunday.

Commencement Date means the date of this Agreement as stated in the Schedule of this Agreement.

Confidential Information means all information of any kind, whether in machine readable or visually readable form, oral or otherwise and whether or not labelled as “Confidential”, including but not limited to technical information, data including personal data, know-how and information relating to either party’s business, marketing strategies, financial condition and operations and submitted or howsoever made available by or on behalf of one party to the other, whether before or after the Commencement Date, for the purposes relating to or in connection with this Agreement.

Governmental Agency means any government or any governmental, semi governmental, administrative, fiscal or judicial body, department, office, commission, authority, tribunal, agency or entity.

Intellectual Property Rights means patents, trade marks, service marks, trade names, registered designs, designs, copyrights and other forms of intellectual or industrial property, know-how, inventions, formulae, confidential or secret processes and trade secrets, and any other protected rights and assets, and any licenses and permissions in connection therewith, in each case in any part of the world and whether or not registered or registerable and for the full period thereof and all extensions and renewals thereof, and all applications for registration in connection with the foregoing.

Merchant means the company or individual listed in the Schedule of this Agreement. 

Party means either MAB or the Merchant, taken in context.

Parties means both MAB and the Merchant which include their successors-in-title.

Portal means a platform that enables users to arrange, maintain, schedule, subscribe or in any manner deal with automotive related services or any other portal designated by MAB, whether current or in the future operated by MAB.

Services means the services provided to the Merchant by MAB which include, but not limited, matching services for the Merchant.

User means the end user of the Portal.

1.2 In this agreement, headings and boldings are only for convenience and do not affect interpretation and, unless the context requires otherwise –

(a)   words in the singular include the plural and the other way around;
(b)   words of one gender include any gender;
(c)   a reference to a person includes an individual, a company, partnership, joint venture, association, corporation or other body corporate and a Governmental Agency;
(d)   a reference to a party to this agreement includes that party’s executors, administrators, successors and permitted assigns;
(e)   a promise or agreement by two or more persons binds each person individually and all of them jointly;
(f)   a reference to a clause, party, schedule, annexure or exhibit is a reference to a clause and schedule of, and a party, annexure and exhibit to, this agreement; and a reference to this agreement includes any schedule, annexure or exhibit;
(g)   a reference to a thing (including, but not limited to, a right) includes any part of that thing but nothing in this clause 1.2(g) implies that performance of part of an obligation constitutes performance of the obligation;
(h)   a reference to a right includes a remedy, power, authority, discretion or benefit;
(i)   a reference to legislation includes any amendment to that legislation, any consolidation or replacement of it, and any subordinate legislation made under it and any rules, regulations and guidelines issued under that legislation or subsidiary legislation;
(j)   a reference to a document, including this agreement, includes any amendment or supplement to, or replacement or novation of, that document or this agreement, as the case may be;
(k)   if a word or phrase is defined, another grammatical form of that word or phrase has a corresponding meaning;
(l)   examples are descriptive only and not exhaustive;
(m)   a provision must not be construed against a party merely because that party was responsible for preparing this agreement or that provision; and
(n)   a reference to a body, other than a party to this agreement (including an association, authority, corporation, body corporate or institution), whether statutory or not –

(i)   which ceases to exist;
(ii)   which is reconstituted, renamed or replaced; or
(iii)   whose powers or functions are transferred to another body,
(iv)   is a reference to the body which replaces it or which serves substantially the same purposes or has the same powers or functions.

1.3 Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the next Business Day.

2. Duration of Agreement

This Agreement shall commence on the Commencement Date and shall continue in effect until the termination of this Agreement by either Party.

3. Obligations

3.1 In consideration of the foregoing, MAB shall provide the Services based on the terms and conditions stated in this Agreement or added from time-to-time.

3.2 An account will be created for the Merchant on the Portal upon execution of this Agreement.

3.3 The Merchant is required to be comprehensively insured upon the execution of this Agreement. In the event that this is not attainable upon the execution of the Agreement, the Merchant shall ensure that it is insured within a reasonable time frame to protect itself against all possible liabilities resulting from the services that it provides to the Users, failing which this Agreement shall be terminated.

3.4 When using the Portal, the Merchant:

(1)   shall ensure that it regularly checks the Portal or any platforms designated by MAB of new reservations made by Users. MAB disclaims any complaint, discomfort, liability or damage caused by the Merchant’s failure to attend such reservations;
(2)   shall adhere to all requests made by MAB in order to ensure the smooth running of the Portal;
(3)   undertakes to maintain a high integrity, quality of work and provide the best service and/or experience to the Users;
(4)   shall use the Portal appropriately as a tool to market itself and generate business and not abuse the Portal for the purposes of carrying out any unlawful activities;
(5)   shall attach its invoice (if required) in the job order for settlement by the User; and
(6)   in respect of workshop services, the Merchant shall:-

a.   shall return the vehicle to the User at the designated time in a condition not worse than before the pick-up;
b.   shall promptly attend to all needs and/or requests of Users in relation to the Portal such as picking-up the vehicles of Users for service and returning the same thereafter;
c.   shall inspect the User’s vehicle when pick-up is arranged and fill-up the vehicle inspection sheet wherein the User shall subsequently acknowledge on the said sheet to confirm the condition of the User’s vehicle at that moment;
d.   shall update the User when the vehicle arrives at the workshop of the Merchant and when the service is completed.

(7)   in the event the Merchant is permitted by MAB to sell goods or services via the Portal, the Merchant will have to adhere to the terms and conditions set out by MAB. The Merchant shall ensure that the goods or services sold are of merchantable and acceptable quality and the delivery of the goods or services are done properly and promptly. There shall be no liability on the part of MAB from the sale of goods or services by the Merchant. MAB will act as an intermediary should any dispute arises between the Merchant and User in respect of the goods.

3.5 MAB will implement a scoring system where the Merchant will be rated according to its performance upon reviews by Users periodically.

3.6 MAB will maintain a periodical backup of the information stored in the Merchant’s account including the reservation details of Users but does not undertake that the said information will be backed up. Thus, the Merchant shall be responsible for keeping an independent backup of all data stored or generated in the account if the Merchant so desires.

3.7 However, in the event that there is any discrepancy in the information relating to the reservations made by Users, MAB’s records shall prevail over any other records.

3.8 If access is required to any of the Merchant’s websites or portals to implement and/or integrate any of the Services, the Merchant shall allow such access immediately failing which MAB is unable to implement such Services and if so, the Agreement shall immediately terminate. The Merchant shall not use any similar services offered by any of MAB’s competitors and if so, MAB reserves the right to terminate this Agreement.

3.9 Further, MAB does not represent or warrant that:-

(1)   access to the Portal or any part of it, will be uninterrupted, reliable or fault-free;
(2)   the Portal or any of its contents will be accurate, complete or reliable; and
(3)   the Users will use the Portal in good faith.

3.10 MAB reserves the right to:-

(1)   amend or rectify any errors and inaccuracies any information provided for publication by the Portal; or
(2)   reject or remove any information if it, in MAB’s opinion, is incomplete inappropriate or in breach of the terms of use of the Portal or this Agreement.

3.11 MAB also reserves the right to suspend, terminate and/or blacklist the Merchant for any misdemeanor, malpractice, shoddy work, abuse usage of the Portal, incompetence shown and/or complaints received from Users.

4. Payment

4.1 MAB shall the Merchant for the Services rendered in the form of prepaid credit or any methods designated by MAB. MAB reserves the right to determine the value of the prepaid credit in Ringgit Malaysia and change it from time-to-time which shall be informed by MAB to the Merchant accordingly.

4.2 Each credit shall be deducted from the Merchant’s account by MAB upon successful booking by the User. If the User or the Merchant cancels the booking not later than one (1) hour before the appointment or such other time as determined by MAB, MAB shall refund the credit to the Merchant. The credit refund also applies to a situation where there is no show on the part of the User.

5. Limitation of Liability

5.1 MAB and its officers, employees and agents shall not be liable to the Merchant for the death of or injury to any of the Merchant’s officers, employees or agents or invitees or any other persons whatsoever and/or any damage to any property of, or any losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred or suffered by the Merchant or by its officers, employees, agents, invitees or by any other person arising directly, indirectly or in any manner whatsoever from any act, omission or negligence of MAB or its officers, employees and agents.

5.2 MAB and its officers, employees and agents shall not be liable for any loss of profit, contracts, business, revenues or savings arising directly or indirectly from any delay, interruption or failure in the installations and equipment in, or provision of services to, the Portal for any reason whatever including, but not limited to, any such delay, interruption or failure by reason of any repair or maintenance (or want thereof), any damage or destruction by fire, water, riot, act of God or other cause beyond MAB’s control, any mechanical or other defect or breakdown, any shortage of manpower, fuel, materials, electricity or water or any labour disputes.

5.3 In any circumstances or events where it is held that MAB and its officers, employees or agents is responsible for any lost profits, lost savings, damage, cost or expense of any kind whatsoever and howsoever caused whether arising under contract or tort, including negligence, or otherwise including without limitation loss of or corruption to data, loss of production, loss of contracts, loss of operation time, and loss of goodwill or anticipated savings or other special, direct or indirect, punitive, consequential or incidental damages arising out of or relating to this Agreement or any product or service furnished or to be furnished under this Agreement or the use thereof, MAB’s total cumulative liability to the Merchant or any other person or third party shall be limited to the amount paid by the Merchant for the Services.

6. Rules and Regulations

MAB shall have the right at any time and from time-to-time to make, add to, amend, cancel or suspend such rules and regulations in respect of the Portal as may from time-to-time be required by the management, maintenance, safety, security, stability and/or care of the Portal and all such rules and regulations shall bind the Merchant upon and from the date on which notice in writing thereof is given by MAB to the Merchant.

7. No Waiver

The failure of MAB to insist upon or require the strict performance by the Merchant of all or any of its obligations under this Agreement shall not in any way be construed as a waiver or relinquishment of any of MAB’s rights under the terms of this Agreement or of MAB’s entitlement to insist upon or enforce the same at any time thereafter and the liability of the Merchant under this Agreement shall not be impaired or discharged by reason of any time or other indulgences granted to the Merchant by or with the consent of MAB.

8. Supplemental Agreements

This Agreement shall not be altered, changed, supplemented or amended except by mutual written agreement by the Parties.

9. Nature of this Agreement

9.1 It is hereby agreed between the Parties that this Agreement shall constitute a license to use the Portal and shall not be construed as an interest in the Portal upon the Merchant, possession of the Portal being at all times retained by MAB subject however to the rights created by this Agreement.

9.2 The relationship between the Parties hereto shall be limited to the matters contained herein and nothing contained in this Agreement shall be considered or interpreted as constituting a partnership or a joint venture between the parties hereto, nor shall anything herein contained be considered or interpreted as constituting any party as the agent of the other party unless otherwise provided.

10. Suspension and Termination

10.1 Without prejudice to any right or remedy a Party may have against the other for breach or non-performance of this Agreement, either Party may at any time give a notice in writing to the other to terminate this Agreement immediately if any one of the following events shall occur: –

(1)   if MAB ceases to provide the Services entirely or ceases operation or operating the Portal;
(2)   If any Party shall fail to observe or perform any of its obligations herein and shall fail to remedy such breach (if capable of being remedied) within thirty (30) days after written notice thereof to the defaulting Party by the non-defaulting Party specifying the nature of the breach;
(3)   if any Party shall become insolvent or is wound up or shall go into liquidation whether compulsorily or voluntarily except for the purpose of a bona fide amalgamation or reconstruction with the consent of the Party;
(4)   if any Party shall have a receiver appointed over any of its assets or undertaking;
(5)   if any distress execution, sequestration or other process shall be issued against any property of the defaulting Party and is not settled within thirty (30) days thereof;
(6)   if any Party shall cease or threaten to cease to carry on the whole or any substantial part of its business other than in the course of reconstruction or amalgamation with the consent of the other Party; or
(7)   if any Party shall infringe or violate any law or regulation pertaining to the use of the Services and that Party shall fail to remedy the infringement or violation within the time frame stipulated by the relevant authority.

10.2 Upon expiration or early termination of this Agreement and/or the Services in accordance with the provisions of this Agreement:-

(1)   MAB may immediately cease providing the Services;
(2)   MAB reserves the right to permanently dispose and delete any data held in the Portal without further reference to the Merchant;
(3)   it shall not affect any rights that have accrued to the Parties hereto either prior to the expiration or early termination of this Agreement; and
(4)   within thirty (30) days after such expiration or termination, each Party shall return all Confidential Information of the other Party (if any) in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.

10.3 In the event where upon this Agreement is terminated and the Merchant’s account still contains prepaid credit, MAB reserves the right to return the unutilised prepaid credit to the Merchant after deduction of any amount owing to MAB or as compensation for any damage caused to MAB which shall be determined at the sole discretion of MAB.

11. Indemnity

11.1 Each party shall indemnify and keep indemnified the other party:-

(1)   against any and all losses, claims, demands, actions, proceedings, damages, costs or expenses or any other liability whatsoever which the other may suffer or incur arising in any way from this Agreement, any act, omission or default of the first party or its officers, employees or agents or otherwise in the exercise or purported exercise by the first party of the rights given in this Agreement or otherwise;
(2)   against all actions, claims, demands, costs, charges, expenses, government seizures, forfeiture and consequences arising from or incurred by reason of any infringement of any legislation, act, regulation, ordinance, etc. enforced in Malaysia; or
(3)   against all actions, claims, demands, costs, charges, expenses, government seizures, forfeiture and consequences arising from or incurred by reason of any infringement or alleged infringement and/or passing-off any letters, patents, trade marks, registered designs, trade names or any kind of right protected in Malaysia.

12. Confidentiality

12.1 Both MAB and the Merchant shall (and shall procure that its officers, employees and agents shall) at all times keep confidential the Confidential Information which it (or they) may acquire in relation to this Agreement and shall not use or disclose such information.

12.2 The obligations of confidence hereunder assumed shall survive the expiry or termination of this Agreement but shall not continue to apply in cases where:-

(1)   such confidential information is used or disclosed with the prior written consent of the parties; or
(2)   such confidential information has become public knowledge other than as a result of unauthorised disclosure; or
(3)   such confidential information is required to be disclosed to the auditors of the Parties or to any governmental or regulatory authority or otherwise required to be disclosed by law.

13. Users’ Data

All data relating to the Users and their related parties provided through the Portal pursuant to this Agreement belongs to MAB.

14. Assignment and Binding

14.1 The benefit of this Agreement is personal to the Merchant and the Merchant shall not assign, transfer, sub-license, delegate, charge or otherwise howsoever deal with any of its rights or obligations under this Agreement nor enter into any agreement for any of the same without the prior written approval of MAB. MAB shall be entitled to assign its rights and obligations under this Agreement without any consent from the Merchant.

14.2 This Agreement is binding upon the personal representatives, executors, administrators, heirs and successors-in-title and permitted assigns of the Merchant; and the successors-in-title and assigns of MAB.

15. Notices

15.1 Each communication under this Agreement shall be made in writing but, unless otherwise stated, may be made by email or registered letter or sent by hand. Each communication or document to be delivered to a party under this Agreement shall be sent to that party at the email or address from time-to-time designated in writing by one party to the other for the purpose of this Agreement. The initial email and address so designated by MAB and the Merchant are set out below:-

(a)   MAB

M Advance Builder Sdn BhdS
D10-03, Sunway Nexis, Jalan PJU 5/1, Kota Damansara, Selangor Darul Ehsan

Email Address: admin@gomeq.com

(b)   Merchant

As per the Schedule of this Agreement

15.2 Any communication from one party to another party shall be deemed to be received by such other party (if sent by email) upon acknowledgement of receipt by the other party, or (in any other case) when left at the address required by Clause 14.1 or two (2) days after being sent by registered post addressed to that address.

15.3 For the purpose of this Clause, each of the parties hereto shall from time-to-time notify the other party in writing of an address in Malaysia where such communication as aforesaid can be given or served and such notification shall be effective only when it is actually received. In the absence of such notification, the communication aforesaid may be given or served at the email and addresses of the respective parties hereinbefore set out.

16. Survivability

The terms of Clauses 10.2, 11, 12 and 15 and shall survive the termination of this Agreement. If the parties have executed a separate agreement that contains confidentiality terms prior to or contemporaneously with this Agreement, those separate confidentiality terms shall remain in full force to the extent they do not conflict.

17. Severability

17.1 The provisions in this Agreement are separate and independent of each other and any provision, which is invalid or unenforceable, shall be ineffective only to the extent of such invalidity or unenforceability without affecting the validity or enforceability of any other provisions in this Agreement.

17.2 Notwithstanding the foregoing, the parties agree that should any provision of this Agreement is illegal, void, prohibited or unenforceable, then the parties shall forthwith enter into good faith negotiations to amend such provision in such a way that after amendment, it is valid, legal and/or enforceable and to the maximum extent possible, carries out the original intent of the parties as to the matter(s) in question.

18. Governing Law and Jurisdiction

This Agreement shall be governed and construed in accordance with the laws of Malaysia and the Parties hereby agree to submit to the exclusive jurisdiction of the courts of Malaysia.

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