GENERAL TERMS OF SERVICE AGREEMENT
Thank you for signing up for a subscription with Dhunicorn Sdn. Bhd. (hereinafter referred to as “DHUNICORN”). This DHUNICORN Service Agreement (“Agreement”) governs a variety of products and services offered to you, by DHUNICORN (collectively referred to as “Products and Services”) through DHUNICORN’s web site, all its associate’s web site and its sales team (the “Site” or “Website”).
Because the Agreement contain legal obligations, please read them carefully.
1.1) By placing an order, clicking to accept this Agreement, or using or accessing any Products and Services or Site, you agree to all the terms and conditions of this Agreement. If you are using the Products and Services or Site on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Service Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement. Please note that we may modify this Agreement as further described in the amendments section below, so you should make sure to check this page from time to time. This Agreement includes any policies or exhibits linked to or referenced herein. BY SUBMITTING YOUR SERVICE ORDER OR MAKING ANY PAYMENT FOR ANY SERVICES WHETHER OFFLINE OR VIA OUR AUTHORIZED CHANNEL PARTNER, YOU INDICATE YOUR AGREEMENT TO BE BOUND BY THIS AGREEMENT.
1.2) This Agreement applies to all Products and Services and governs all applications or service orders for the Products and Services (each referred to as a “Service Order”). In case of any conflict between the terms of this Agreement and those of a Service Order, the terms of the Service Order shall prevail.
1.3) The Service Order becomes binding on the Parties and subject to this Agreement upon execution of a Service Order Form effective as of the last date of signature of the Service Order Form (the “Effective Date”).
2.1) DHUNICORN agrees to provide Customer access to Products and Services for each service as set forth and for the purposes described in the applicable Service Order Form by referring to this Agreement. Subject to the terms and conditions of this Agreement and applicable Service Order Forms(s), DHUNICORN grants Customer a nonexclusive, non-transferable, limited right to access and use the Products and Services during the term as specified in the applicable Service Order Form solely for its internal business operations. DHUNICORN’s obligation to provide access to the Products and Services is expressly subject to: (1) Customer providing DHUNICORN with all necessary data, order guides, purchase orders, account, product and transaction details and other information reasonably required and requested by DHUNICORN to provide each Products and Services hereunder (“Customer Information”) in the manner and formats reasonably required and requested by DHUNICORN, and (2) the possession and/or use of Products and Services by Customer meets the minimum requirements specified in the applicable Service Order Form (if any). Customer represents that it has all necessary rights to the Customer Information provided to DHUNICORN hereunder.
2.2) DHUNICORN reserves the right to change, add, suspend, cancel, remove or otherwise modify the Products and Services at any time temporarily or permanently without prior notice. Similarly, DHUNICORN reserves the right to introduce new features or impose limits on certain features or restrict access to parts or all of the Products and Services. Any such amendments and alterations shall be governed by this Agreement, unless otherwise stated by DHUNICORN, and in particular:
- In the event DHUNICORN at its sole discretion, decides to upgrade or modify the Products and Services, upon reasonable notice to its affected Customers, any of the credit or unused amount in the relevant Customer’s account shall be converted by DHUNICORN to the Customer to corresponding credits in the upgraded or modified Products and Services offering, at such a rate to be determined by DHUNICORN; and/or
- In the event that DHUNICORN decides, at its sole discretion, to terminate or discontinue a Products and Services permanently in a country, DHUNICORN may, upon reasonable notice to affected Customer, either: (i) convert or upgrade such affected Customer to another Products and Services in accordance with clause 2.2(a) ; or (ii) refund the affected Customer any unused amount or pro-rated amount (as the case may be) of any fees paid by such Customer for unused Products and Services as at the Products and Services termination date based on the records of the Products and Services account held by DHUNICORN, at such exchange rate utilized by DHUNICORN as at the relevant date in the event of any currency conversion (if applicable), less any applicable bank fees or charges.
2.3) Customer shall keep confidentiality and proper custody of its Member ID and Password of the account assigned to Customer in connection with its use of the Products and Services (the “Account”). Each Member ID and Password is for a single user only. Customer agrees that it shall be solely responsible for any use of its Account (including without limitation publishing of any information and materials, accepting any online rules and agreements, subscribing for or purchasing any service or product online) and any use of its Account will be deemed by DHUNICORN as having been fully authorized by such Customer. Customer shall not share with, assign to or permit a third party to use its Account, Member ID or Password (collectively, “multiple use”). Customer acknowledges that multiple use of its Account with any third party may cause irreparable harm to DHUNICORN, and agrees to indemnify DHUNICORN and its affiliates against any loss or damages suffered by DHUNICORN and its affiliates as a result of multiple use of its Account. If Customer fails to take necessary measures to maintain the security of the Account or to prevent the risks of unauthorized access shall constitute a breach of the Agreement, DHUNICORN shall have the right to suspend the provision of the Products and Services or terminate this Agreement without any refund or other compensation to Customer.
2.4) DHUNICORN shall have the right, but shall not be obliged, to monitor or examine any information and materials including any website link that Customer publishes or submits to DHUNICORN for publishing on the Site (the “Member Materials”). Publishing of Member Materials shall by no means mean that DHUNICORN has endorsed or otherwise certify the contents of such Member Materials. Customer shall be solely responsible for the contents of its Member Materials.
2.5) If any activities of Customer on the Site or any Member Materials (including material accessible through a link in the Member Materials), in DHUNICORN’s reasonable opinion, are in violation of any applicable laws and regulations or a third party’s legitimate rights (including without limitation intellectual property rights), the terms of this Agreement or the Website Terms or may otherwise subject DHUNICORN or its affiliates to liability, DHUNICORN may, at its option, delete, remove or modify such Member Material or any part thereof and/or limit or suspend the provision of the Products and Services or any part thereof (including without limitation limiting the number or types of product listings that the Customer can publish on the Site for such duration as DHUNICORN may in its sole discretion consider appropriate).
2.6) DHUNICORN reserves the right to cooperate fully with governmental authorities, private investigators and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, DHUNICORN may disclose Customer’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a subpoena or other legal action. DHUNICORN shall not be liable for damages or results thereof, and Customer agrees not to bring any action or claim against DHUNICORN for such disclosure. In connection with any of the foregoing, DHUNICORN may suspend or terminate Customer’s Account as DHUNICORN deems appropriate at its sole discretion. DHUNICORN shall have the right to publish the records relating to handling of complaints against Customer, breaches by Customer or termination of this Agreement on the Site.
2.7) Customer hereby grants to DHUNICORN a non-exclusive, royalty-free, sub-licensable, worldwide, transferable license to (a) display, publish or transmit all or part of the Member Materials or any adaptations thereof, (b) link, copy, store, adapt, translate or make other reasonable use of all or part of the Member Materials or any adaptations thereof, necessary to provide the Products and Services in any medium known now and in the future.
2.8) Customer authorizes DHUNICORN (DHUNICORN however has no obligation) to, directly or indirectly, in such form and at such time and conditions at DHUNCORN’s sole discretion, promote, on behalf of customer, any materials. To the extent that DHUNICORN does not materially modify such materials, Customer agrees and undertakes that it shall be solely responsible for, and shall keep DHUNICORN fully indemnified against any action, liability, claim, loss, damage and expense (including legal cost) arising from or related to such materials.
2.9) DHUNICORN reserves the right to improve or update the Products and Services at any time, including improvement to or upgrade of the company and product classifications, ranking etc.
- Fees and Payment.
Customer agrees to pay all fees in the currency and payment period specified in the applicable Service Order Form. All service fees shall be payable in advance to DHUNICORN or its affiliate or authorized agent, authorized reseller, or authorized channel partner by wire transfer, credit card, third-party payment system (including but not limited to PayPal) or such other method acceptable to DHUNICORN, in US Dollars or its equivalent in such other currency as permitted by DHUNICORN.DHUNICORN’s fees are exclusive of all taxes that may be levied by any jurisdiction, and Customer must pay any applicable taxes or levies, whether domestic or foreign. Taxes will be added to the amounts payable by you to DHUNICORN as applicable and as required by law such that the net amount actually received by DHUNICORN equals the full amount of the payment due hereunder. For greater certainty, Taxes will not be added to the amounts payable by you to DHUNICORN where you have provided DHUNICORN with evidence to DHUNICORN’s satisfaction of a lawful and applicable exemption for such Taxes. ‘“Taxes” means all federal, state, provincial, territorial, county, municipal, local or foreign taxes, including but not limited to sales, use, license, excise, good and services, value added, stamp or transfer taxes, duties, imposts, levies, assessments, tariffs, fees, charges or withholdings of any nature whatsoever levied, imposed, assessed or collected by a taxation authority together with all interest, penalties, fines or other additional amounts imposed in respect thereof, but for greater certainty excludes any of the foregoing which are (i) based on gross or net income, (ii) franchise taxes, or (iii) property, personal property or rental taxes (collectively “Excluded Taxes”). Each party shall be responsible for any and all Excluded Taxes that it is liable for under applicable law. Notwithstanding anything else contained herein, all amounts payable by you pursuant to these terms in the Agreement shall be free of withholding on account of any Taxes. If any Taxes are required to be withheld from any such amount payable by you under these Terms, you (A) shall pay an additional amount such that the net amount actually received by DHUNICORN, after such withholding, equals the full amount of the payment then due, (B) shall timely pay to the relevant taxation authority the full amount required to be withheld in accordance with applicable law, and (C) shall furnish DHUNICORN as soon as practicable (but in no event later than thirty (30) calendar days post payment to the relevant taxation authority) an official receipt evidencing payment of the withheld amount to the relevant taxation authority. “Taxation Authority” means any government, state, municipality or any local, provincial, state or other fiscal, customs, excise or taxing authority, body or official anywhere in the world with responsibility for, and competency to, impose, collect, audit, assess, administer or levy any Taxes or make any decision or ruling in respect of any Taxes.
DHUNICORN sends invoices electronically. For Customer who opted to paying by credit card, it authorizes DHUNICORN to charge the fees and other amounts automatically to Customer’s credit card without invoice. Payments are non-refundable and non-creditable and payment obligations non-cancellable. Late payments may be subject to a service charge allowed by law.
- Duration of Service.
Unless otherwise agreed by the parties, the service period for the Products and Services shall be one (1) year from the activation date of the Account. Activation of the Account shall be notified to Customer via email to such email address provided by the Customer upon registration for the Products and Services.
- Term and Termination.
5.1) Term. This Agreement is effective until the expiry on the day when the Duration of Service expire unless early terminated according to the terms of this Agreement.
5.2) Subscription Term and Renewals. By executing a Service Order Form for purchase of a Products and Services, Customer is agreeing to pay applicable fees for the entire subscription. Customer cannot cancel or terminate a subscription. If no subscription start date is specified on the applicable Service Order Form, the subscription starts when Customer first obtains access to the Products and Services. Each subscription will automatically renew for additional successive twelve-month periods subject to Clause 5.4.3 and unless: (i) otherwise stated on the applicable Service Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current subscription. Pricing for any subscription of Service renewal, new Service Order Form, or Service Order Form changes will be at DHUNICORN’s then-applicable rates.
5.3) Suspension of Service. DHUNICORN may suspend Customer’s access to the Products and Services or Site if:
- Customer’s account is overdue; or
- Customer has exceeded its scope of use. DHUNICORN may also suspend Customer’s use of Products and Services, remove Customer’s Data or disable Third-Party Products if it determines that: (a) Customer has breached any of the clauses in this Agreement; or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Products and Services. DHUNICORN will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 5.3. However, unless this Agreement has been terminated, DHUNICORN will cooperate with Customer to promptly restore access to the Products and Services or Site once it verifies that Customer has resolved the condition requiring suspension.
5.4.1) If any of the following circumstances occurs, DHUNICORN shall have the right to terminate the Agreement immediately at such time deemed appropriate by acting in its sole discretion upon written notice to Customer and to forfeit the service fees for any unused Products and Services without liability:
- DHUNICORN has reasonable grounds to believe that Customer uses the Products and Services or Site for any fraudulent or other unlawful purpose.
- Customer assigns or transfers part or all of its rights and obligations under this Agreement to a third party (including multiple use of its Account) without DHUNICORN’s prior written consent;
- Customer sells any information related to the buyers and/or their buy leads/enquiries which are obtained by Customer as a result of use of the Products and Services without DHUNICORN’s prior written consent;
- Customer is involved in any scheme or activities to undermine the integrity or normal operation of the computer systems or networks of the Site (including gaining unauthorized access to the systems of the Site, stealing, modifying or deleting the information of other members of the Site without authorization);
- Customer is in breach of any of its representations, warranties and undertakings in Clause 8;
- Customer has failed to rectify any breach of this Agreement within 10 working days of being notified by DHUNICORN of such breach;
- Customer has committed breaches to the clauses in this Agreement;
- Customer ceases to conduct its operations, is insolvent or wound up, or becomes the subject of any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors or similar proceeding; or
5.4.2) If the Agreement is terminated under clause 5.4.1 and other provisions of this Agreement, DHUNICORN shall have the right to refuse any and all current or future use by Customer of the Products and Services or any other services that may be provided by DHUNICORN. Furthermore, DHUNICORN shall have the right to refuse any renewal or extension of Duration of Service in grounds that DHUNICORN may deemed fit.
5.4.3) In the event that DHUNICORN does not receive full payment of service fees for whatsoever reason, or within ten (10) days of automatic renewal of the service, such Customer’s subscription shall be terminated immediately without further notification from DHUNICORN. Access to the Products and Services or Site shall be denied upon such termination.
5.4.4) Notwithstanding any of the foregoing provision of this Clause 5.4, DHUNICORN may at any time with 14 calendar days prior written notice for convenience without reason terminate this Agreement. Such termination shall be without prejudice to all rights and obligations incurred by Customer and DHUNICORN on and prior to the termination date. DHUNICORN shall at its sole discretion refund within 90 days to Customer the pro-rated amount of any fees received from Customer for the unused Products and Services for the remainder of the Duration of Service after the termination date.
5.4.5) It is the sole obligation of Customer to keep DHUNICORN informed of a valid and legally permissible account for receiving any funds payable to it under this Agreement. DHUNICORN shall not be responsible for any delay or failure of receipt of funds by Customer arising out of incomplete or inaccurate information provided by Customer and DHUNICORN shall only use its reasonable commercial efforts to contact Customer in respect of any such delay or failure.
5.5) Effect of Termination. Upon any expiration or termination of this Agreement or an Service Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable Products and Services or Site; (b) delete (or, at DHUNICORN’s request, return) any and all copies of the DHUNICORN documentation, passwords or access codes, and any other DHUNICORN Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer’s information in the applicable DHUNICORN Products and Services will cease and DHUNICORN may delete the Customer information at any time after 30 days from the date of termination.
- Proprietary Rights.
Ownership of and all right, title and interest to each Products and Services (including but not limited to, originals, translations, compilations and partial copies, if any), and any enhancements or derivative works thereof and all related Intellectual Property Rights, shall remain solely in DHUNICORN and its licensors. Except as specifically authorized in writing by DHUNICORN, Customer may not, nor allow others to, copy or otherwise reproduce any Products and Services, or any related materials in whole or in part or attempt to unlock, download, reverse assemble, reverse compile, run third-party software applications other than approved integrated applications or browsers upon, or disrupt operation of any Products and Services. Customer will not, and will ensure that any agent of Customer does not, delete or in any manner alter the copyright, trademark, and any other proprietary rights notices of DHUNICORN, if any, appearing on a Products or Services, or related materials as delivered to Customer. Customer’s use of Products and Services, or related materials will be limited to the use described in the applicable Service Order Form and only in connection with and only so long as, Customer is entitled to use a Products and Services in accordance with this Agreement. Customer agrees not to:
- provide access to the Products and Services to any third party or person who is not an authorized user of such Products and Services and Customer shall ensure that the any authorized links shall only be used by Customer and its authorized users solely for the purposes of and in accordance with the terms of this Agreement;
- directly, or through any third party, sell, license, barter, trade, transfer, or otherwise make or allow access to the Products and Services to any third party without DHUNICORN’s prior written consent;
- allow any further processing or Confidential Information through any outsourced service or application competitive with DHUNICORN and not approved by DHUNICORN; or
- attempt to derive any of DHUNICORN’s product naming conventions or methods for deriving any DHUNICORN product codes or DHUNICORN product names.
- Customer’s responsibilities.
7.1) Customer represents, warrants, and undertakes (where applicable) to DHUNICORN that:
- it has the full power and authority to enter into this Agreement, to grant the license and authorization and to perform its obligations hereunder;
- it will carry on its activities on the Site in compliance with any applicable laws and regulations;
- it will not use the Products and Services to defraud users of the Site or engage in other unlawful activities (including without limitation spamming, allowing another to use its business registration information to subscribe for a DHUNICORN service);
- it has the legitimate right and authorization to posts on the Site or otherwise referred to in its Member Materials;
- all contents of its Member Materials are true, lawful and accurate, and are not false, misleading or deceptive;
- it will not impersonate any person or entity, or misrepresent itself or its affiliation with any person or entity;
- it will not post any product or service in breach of this Agreement, and its Member Materials or any product or service referred to in its Member Materials do not infringe or otherwise abet or encourage the infringement or violation of any third party’s copyright, patent, trademarks, trade secret or other proprietary right, rights of publicity and privacy or other legitimate rights;
- its Member Materials do not contain information that is defamatory, libellous, threatening or harassing, obscene or sexually explicit or harmful to minors;
- its Member Materials do not contain information that is discriminatory or promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
7.2) Customer agrees and undertakes that it will not:
- copy, reproduce, exploit or expropriate DHUNICORN’s various proprietary materials, information, web site, directories, databases and listings;
- use or distribute any computer viruses or other destructive devices and codes that may harm, interfere with, intercept or expropriate any software or hardware system, data or personal information;
- gain or attempt to gain authorized access to the computer systems or networks used by DHUNICORN and/or any user of the Site or engage in any other activities that may harm the integrity of such computer systems or networks;
- take any action which may undermine the integrity of DHUNICORN’s feedback system, such as leaving positive feedback for himself using secondary Member IDs or through third parties or by leaving unsubstantiated negative feedback for another Customer.
7.3) With regards to information about or posted on behalf of any business referee, Customer represents and warrants that it has obtained all necessary consents, approvals and waivers from its business partners and associates (a) to act as its business referee; (b) to post and publish their contact details and information, reference letters and comments on their behalf; and (c) that third parties may contact such business referees to support claims or statements made about Customer.
7.4) Customer shall conduct all activities on the Site in accordance with all applicable laws and regulations and commonly accepted commercial practices. Customer shall also conduct its business affairs with integrity and in an ethical manner.
7.5) Customer acknowledges and agrees that DHUNICORN shall not be responsible, and shall have no liability to it or anyone else for any content of the Member Materials or materials posted by third parties.
7.6) Customer shall be solely liable for its business name submitted. In case DHUNICORN receives any complaint or claim against Customer in respect of its business name, unless Customer changes to a new business name, DHUNICORN shall have the right to suspend or terminate Customer’s Account immediately.
7.7) Customer agrees to indemnify DHUNICORN and its affiliates and their employees, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from its Member Materials or use of the Products and Services or from Customer’s breach of this Agreement or the Website Terms (including claims arising from Customer’s business name) and from claims of third parties. DHUNICORN reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by Customer, in which event Customer shall cooperate with DHUNICORN in asserting any available defences.
7.8) Customer agrees to provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for DHUNICORN’s provision of the Products and Services. If Customer fail to do so results in delay in the provision of any of the Products and Service, DHUNICORN shall not be obliged to extend the relevant service period or liable for any loss or damages arising from such delay.
- Access and Use.
To the extent that any access is granted hereunder, any such access shall be non-exclusive, non-transferable, limited access to utilize the Products and Services or Site solely for the purposes of and in accordance with the terms and conditions of this Agreement. For the avoidance of any uncertainty, upon the termination of this Agreement the right of access and use of any Products and Services, and to the extent applicable any related access grants, shall end. Authorized user seats cannot be shared by more than one (1) individual but may be assigned to new users who are replacing the authorized users. The number of authorized users shall be defined in a Service Order Form.
- Force Majeure
9.1) Under no circumstances shall DHUNICORN be held liable for any delay or failure or disruption of the Products and Services resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, acts of God, Internet failures, computer, telecommunications or any other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, terrorism, war, governmental actions, orders of domestic or foreign courts or tribunals.
- General Provisions
10.1) This Agreement shall be governed by the laws of Malaysia without regard to its conflict of law provisions. The parties to this Agreement hereby submit to the exclusive jurisdiction of the courts of Malaysia.
10.2) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
10.3) Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
10.4) Any failure by DHUNICORN to exercise any of its rights under this Agreement shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach. A waiver shall be effective only if made in writing.
10.5) DHUNICORN shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement) to any person or entity (including any affiliates of DHUNICORN). Customer may not assign, in whole or part, this Agreement to any person or entity.
10.6) If there is any conflict between the English version and another language version of this Agreement, the English version shall prevail. Any non-English language version of this Agreement is provided for reference purposes only.