Terms of Service

These ‘Terms of Service’ (“Terms”) apply to and are incorporated by reference into the ordering document (the “Quote”) made by and between the Service Provider (as identified in the Quote) and the Customer (as identified in the Quote) and set forth the terms and conditions under which Service Provider will provide the Customer with access to Jomeinvoice as set forth in the Quote (“Application”) and user documentation that Service Provider makes generally available in hard copy or electronic form to its general customer base in conjunction with the licensing of the Application (“Documentation”). The Application and the Documentation will hereinafter collectively be referred to as the “Software”. For clarity, “Application” means Jomeinvoice, a proprietary software developed and owned by Jom eInvoice Sdn. Bhd. (Registration No. 202401003248 (1549098-K)) (“Owner”) that is specifically licensed to Customer pursuant to a Quote.

Owner, Service Provider and Customer hereby agree as follows:

1. LICENSE GRANT AND RIGHT OF USE

1.1. License Grant. Subject to all limitations and restrictions contained herein and the Quote, Owner grants Customer a term subscription, software as a service (‘SaaS’), non-exclusive, non-transferable and revocable right to access and operate the object code form of Application (and use its Documentation) as hosted by Owner as described in the Quote (“Use”) and solely to perform those functions described in the Documentation. 

1.2. Use. Customer will have a limited right and license to Use the Application solely for its internal business purposes, to perform the functions described in the Documentation. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Application. Customer shall not allow any website, that is not fully owned by Customer, to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Software. Unless otherwise expressly permitted in the Quote and subject to Section 1.5, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Software.

1.3. License Type. Unless otherwise specifically stated in the Quote, the type of license granted is a per Staff User Account. Customer shall ensure that the number of the active Staff User Accounts is equal to or less than the number of Staff User Accounts for which the Customer has subscribed. Customer is responsible for ensuring that access to a Staff User Account is not shared. Only one individual may authenticate to one Staff User Account. Hardware or software Customer uses to pool connections, reroute information, or reduce the number of users that directly access or use the Software (sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses or active Staff User Accounts Customer needs. A “Staff User Account” subscription license means that the Application licensed pursuant to the Quote may be Used by a limited number of individual users, each identified by a unique user id the maximum number of which is specified in the Quote. Customer may designate different Staff User Accounts at any time without notice to Service Provider or Owner so long as the permitted number of Staff User Account is not exceeded.

1.4. Additional Restrictions. In no event will Customer disassemble, decompile, or reverse engineer the Application or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Application from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Application by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Application’s operation and creating the original source code or any approximation thereof by, for example, studying the Application’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Application that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of these Terms. Customer may use Owner’s or Service Provider’s Confidential Information solely in connection with the Application and pursuant to the terms of these Terms.

1.5. Authorized Users. Unless otherwise specifically provided in the Quote, “Authorized Users” will only consist of: (i) employees of Customer, and (ii) subject to Section 5 (Confidentiality), third party contractors of Customer who do not compete with Owner (“Permitted Contractors”). Permitted Contractors may Use the Software only at Customer’s place of business or in the presence of Customer personnel. Customer is fully liable for the acts and omissions of Permitted Contractors under these Terms and applicable Quote.

1.6. Customer License Grant. Customer grants to Service Provider and Owner a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer data as is reasonable or necessary for Service Provider and Owner to perform or provide the Application.

1.7. Third Party Software. The Services may contain third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions may be requested from Owner and are made a part of and incorporated by reference into these Terms. By accepting these Terms, Customer is also accepting the additional terms and conditions, if any, set forth therein.

2. PAYMENT

2.1. Fees. Customer shall pay Service Provider the fees indicated on the Quote. Unless otherwise provided in a Quote, all fees are to be paid to Service Provider within thirty (30) days of the date of invoice. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer is delinquent on a payment of fees for fifteen (15) days or more, Service Provider may suspend access to the Application. Complaints concerning invoices must be made in writing within thirty (30) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer, additional fees will apply.

2.2. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes (including interest and penalties). Customer shall reimburse Service Provider and/or Owner and hold Service Provider and Owner harmless for all taxes which Service Provider and/or Owner is required to collect or remit to applicable tax authorities. 

3. OWNERSHIP

3.1. Reservation of Rights. By signing the Quote, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or materials provided by Service Provider and/or Owner to Customer. Owner will own all right, title, and interest in such Software and materials, subject to any limitations associated with intellectual property rights of third parties. Service Provider and/or Owner reserves all rights not specifically granted herein.

3.2. Marks and Publicity. Service Provider and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. Service Provider and/or Owner may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; and/or (iii) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, Service Provider and/or Owner may include Customer’s name and/or logo within its list of customers for general promotional purposes. Service Provider and Owner shall comply with Customer’s trademark use guidelines as such are communicated to the Service Provider in writing and Service Provider shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.

4. CONFIDENTIALITY

4.1. Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Quote Term Start Date (as identified on the Quote), and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. For clarity, the term ‘Confidential Information’ includes any personal data (having the meaning ascribed under the Personal Data Protection Act 2010).

4.2. Confidentiality of Software. All Confidential Information in tangible form will be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), will be designated as being confidential at the time of disclosure and will be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by Service Provider and/or Owner; (ii) the oral and visual information relating to the Application; and (iii) these Terms.

4.3. Exceptions. Without granting any right or license, the obligations of the parties hereunder will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.

4.4. Ownership of Confidential Information. Nothing in these Terms will be construed to convey any title or ownership rights to the Software or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the Service Provider’s and/or Owner’s Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these Terms. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.

4.5. Non-Disclosure. Each party agrees at all times to use all reasonable efforts, but in any case no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.

4.6. Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party will be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.

4.7. Suggestions/Improvements to Software. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other materials provided to Customer will be owned by Owner, and Customer hereby agrees to assign any such rights to Owner. Nothing in these Terms will preclude Owner from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Owner in the performance of services hereunder.
4.8. Personal Data
Service Provider and Owner shall safeguard and ensure that all transaction data including any personal data contained therein which are received by Customer and processed through the Application shall be, at all times, secured and protected in accordance with: (i) the standard industry practice in relation to information security management system; and (ii) all relevant rules, regulations and laws imposed by the relevant authorities.

5. WARRANTY

5.1. No Malicious Code. To the knowledge of Owner, the Application does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Application, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Application in any manner. This warranty will be considered part of and covered under the provisions of these Terms. Customer must: (i) notify Service Provider promptly in writing of any non-conformance under this warranty; (ii) provide Service Provider with reasonable opportunity to remedy any non-conformance under the provisions of these Terms; and (iii) provide reasonable assistance in identifying and remedying any non-conformance.

5.2. Disclaimer of Warranties. Any and all of SOFTWARE, HARDWARE, SERVICES, CONFIDENTIAL INFORMATION and any other technology or materials provided by SERVICE PROVIDER AND/OR OWNER to the CUSTOMER are provided “as is” and without warranty of any kind. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 6 OF THESE TERMS. SERVICE PROVIDER AND/OR OWNER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER SERVICE PROVIDER (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.

5.3. Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under these Terms are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Service Provider and/or Owner.

6. INDEMNIFICATION

6.1. No Liability. Service Provider will have no liability for any claim of infringement based on: (i) Software which has been modified by parties other than Service Provider where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Software in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Software outside the permitted scope of these Terms.

6.2. Remedies. Should the Software become, or in Owner’s opinion is likely to become, the subject of a claim of infringement, Owner may, at its option, (i) obtain the right for Customer to continue using the Software, (ii) replace or modify the Software so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Software. Upon such termination, Customer shall cease accessing the Software and Service Provider will refund to Customer, as Customer’s sole remedy for such license termination, the subscription fees paid by Customer for the terminated license for the past twelve (12) months. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF SERVICE PROVIDER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE APPLICATION.

6.3. Customer Indemnity. Customer agrees to defend, indemnify, and hold Service Provider and/or Owner and their officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (i) breach of any of its obligations set forth in Section 9 (Customer Obligations); (ii) Customer’s gross negligence or willful misconduct; (iii) actual or alleged use of the Application in violation of these Terms or applicable law by Customer or any Authorized Users; (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Service Provider and/or Owner by the Customer or otherwise inputted into the Application, whether by the Customer, an Authorized User or otherwise including Customer Work Product (as defined below); and/or (v) any violation by Customer or its Authorized Users, of any terms, conditions, agreements or policies of any third party service provider. “Customer Work Product” means that data and those forms developed or acquired by Customer for internal business purposes independent from Service Provider or the Application.

6.4. Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim.

7. LIMITATION OF LIABILITY

7.1. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER AND OWNER BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.

7.2. Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER AND OWNER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.

7.3. THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

8. TERM AND TERMINATION

8.1. Subscription Term. The term of these Terms will continue until the termination of the last Quote.

8.2. Termination by Service Provider. These Terms and any license created hereunder may be terminated by Service Provider: (i) if Customer fails to make any payments due hereunder within thirty (30) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

8.3. Termination by Customer. These Terms may be terminated by Customer on thirty (30) days written notice to Service Provider if Service Provider fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Service Provider’s receipt of Customer’s notice or a longer period if Service Provider is working diligently towards a cure.

8.4. Effect of Termination. Upon termination of these Terms, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.

8.5. Other Remedies. Termination of Terms will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under these Terms.

9. CUSTOMER OBLIGATIONS

9.1. Customer agrees that no employees of Service Provider and/or Owner will be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.

9.2. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to these Terms. Customer shall ensure that each Web site for which the Application is engaged contains or is linked to a privacy policy that governs its data collection and use practices.

9.3. The Customer shall be obliged to inform its Authorized Users before the beginning of use of the Software about the rights and obligations set forth in these Terms. The Customer will be liable for any violation of obligations by its Authorized Users or by other third parties who violate obligations within the Customer’s control.

9.4. The Customer shall be obliged to keep the login names and the passwords required for the use of the Application confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct its Authorized Users to observe copyright regulations. Personal access data must be changed at regular intervals.

9.5. Before entering its data and information, the Customer shall be obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose. In addition, the Customer itself shall be responsible for the entry and the maintenance of its data.

9.6. Service Provider and/or Owner has the right (but not the obligation) to suspend access to the Application or remove any data or content transmitted via the Application without liability (i) if Service Provider and/or Owner reasonably believes that the Application is being used in violation of these Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Service Provider and/or Owner shall use commercially reasonable efforts to notify Customer prior to suspending the access to the Application as permitted under these Terms, or (iii) as otherwise specified in these Terms. Information on Owner’s servers may be unavailable to Customer during a suspension of access to the Software. Service Provider and/or Owner will use commercially reasonable efforts to give Customer at least twelve (12) hours’ notice of a suspension unless Service Provider determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Service Provider and/or Owner or their customers.

10. MISCELLANEOUS

10.1. Assignment. Customer may not assign these Terms or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Service Provider. Any purported assignment of these Terms, or any license or rights in violation of this Section will be deemed void. The Owner may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation.

10.2. Third Parties. Service Provider and/or Owner will have the right to use third parties, including, but not limited to, employees of Service Provider’s and/or Owner’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of these Terms, all references to Service Provider and/or Owner or their employees will be deemed to include such Subcontractors.

10.3. Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Terms.

10.4. Survival. The provisions set forth in Sections 2, 4, 7, 8.3, 8.4 and 10 of these Terms will survive termination or expiration of these Terms and any applicable license hereunder.

10.5. Notices. Any notice required under these Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Quote or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.

10.6. Force Majeure. Service Provider and/or Owner will not be liable to Customer for any delay or failure of Service Provider to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Service Provider. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

10.7. Modifications. The parties agree that these Terms cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.

10.8. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

10.9. Severability and Reformation. Each provision of these Terms is a separately enforceable provision. If any provision of these Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these Terms to remain in effect in accordance with its terms as modified by such reformation.

10.10. Independent Contractor. Service Provider is an independent contractor and nothing in these Terms will be deemed to make Service Provider an agent, employee, partner, or joint venture of Customer. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.

10.11. Governing Law. These Terms are governed by the substantive and procedural laws of Malaysia, and both parties agree to submit to the exclusive jurisdiction of, and venue in, the courts in Kuala Lumpur in any dispute arising out of or relating to these Terms.

10.12. Dispute Resolution. Where there is a dispute, controversy, or claim arising under, out of, or relating to these Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party.