AUTOCOUNT PAYROLL END USER SUBSCRIPTION AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY THE TERMS AND CONDITIONS IN THIS AGREEMENT BEFORE SUBSCRIBING FOR THE SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT IN ITS ENTIRETY AND WITHOUT MODIFICATION, THEN YOU MUST NOT INSTALL, EXECUTE OR USE AUTOCOUNT SOFTWARE AND/OR SERVICES.
This AutoCount Payroll End User Subscription Agreement (this "Agreement") is a legal agreement between Auto Count Sdn. Bhd. (Company No.: 751600-A) (“ACSB”), a Malaysian private limited company, and you or the company or other persons that you are authorized to represent ("You" and “Your”). This Agreement governs the use of the accompanying AutoCount Payroll which provides You certain payroll processing, both monthly and annually such as salary, overtime, commission, incentive, bonus, EPF, SOCSO, PCB, and other related services (collectively refer to as the “Service” and “Services”). The Service is provided through AutoCount Payroll’s online software application and website operated by ACSB. The Service shall not be accessed or used unless you agree to subscribe and comply with the full terms and conditions of this Agreement. This Agreement limits and excludes warranties and remedies regarding the Service, exempts ACSB from liability or limits its liability, and contains other important provisions that You should read.
In this Agreement, the following expressions shall have the meanings assigned to them below. Other terms are defined elsewhere in this Agreement and those terms, when used with initial capital letters, will also have the defined meanings whenever they appear in this Agreement.
“Agreement” means this AutoCount Payroll End User Subscription Agreement;
“Authorized Users” means any and all individuals (e.g. Your accountant or trusted financial advisor, etc.) who You designate or authorise to access and/or modify Your Service data on Your behalf;
“Business Days” means any day except Saturdays, Sundays and public holidays on which ACSB is open for transaction of business;
“Documentation” means the manuals and user guides and other electronic media-based descriptions made available by ACSB to subscribers of the Service from time to time and includes amendments and upgrades provided as part of the support and maintenance services or otherwise;
“Intellectual Property Right” means any patent, copyright, registered design, trademark, or other industrial or intellectual property rights subsisting in the AutoCount Payroll and its website belonging to ACSB who developed the AutoCount Payroll;
“New Release” means any improved, modified or corrected version of the Software by ACSB or of the same made or issued by ACSB;
“Normal Business Hours” means 9.00 a.m. to 6.00 p.m. from Monday to Friday, excluding Public Holidays;
“Parties” means the parties to this Agreement and “Party” means either of them;
“Service” means the payroll processing provided by AutoCount Payroll, both monthly and annually, such as salary, overtime, commission, incentive, bonus, EPF, SOCSO, PCB, and other related services;
“Software” means the online software application to be supplied by ACSB as the AutoCount Payroll including any New Release and the Documentation (where applicable);
“Subscription” means the arrangement to access and use the Service; and
“Subscription Fee” means the payment of non-refundable fee for the Subscription to the Service for a specific period of time.
In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words of the masculine gender include the feminine and neuter genders and words denoting natural persons include corporations and firms and such words shall be construed interchangeably in that manner;
(c) the terms “hereof”, “herein”, “hereby”, “hereto” and similar words refer to this entire Agreement and not any particular clause, or any other subdivision of this Agreement;
(d) the word “include” or “including” shall be deemed to be followed with “without limitation” or “but not limited to” whether or not they are followed by such phrases or words of like import;
(e) references to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be amended, modified or re-enacted;
(f) references to “this Agreement” or any other agreement or document shall be construed as a reference to such agreement or document as amended, modified or supplemented and in effect from time to time and shall include a reference to any document which amends, modifies or supplements it, or is entered into, made or given pursuant to or in accordance with its terms and conditions;
(g) a reference to a person includes any company or other body corporate, partnership, joint venture, association, and any governmental agency;
(h) a reference to a party means the ACSB or the end user, as the context dictates, and includes that party’s legal personal representatives, successors-in-title and any permitted transferees and assigns;
(i) references to this or any other document shall include the document as varied or replaced notwithstanding any change in the identity of the Parties;
(j) words denoting an obligation on a Party to do any act matter or things include an obligation to procure that it is done and words placing a Party under a restriction include an obligation not to permit infringement of the restriction;
(l) whenever this Agreement refers to number of days, such reference shall be to calendar days unless Business Days are specified;
(m) a “month” is a reference to a period starting on one day in a calendar month and ending on the day immediately preceding such numerically corresponding day in the next calendar month (and references to “months” shall be construed accordingly) save that, where any such period would otherwise end on a day which is not a Business Day, it shall end on the next Business Day. If any such period starts on the last Business Day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last day in that later month save as aforesaid; and
(n) if this Agreement is translated into a language other than English, and there is any inconsistency between the English and non-English versions, the English version shall prevail.
SUBSCRIPTION GRANTS AND RESTRICTIONS
You acknowledge and agree that the Service is subscribed on a monthly basis, which requires a Subscription Fee for the use of the Service.
access and use the Service, subject to the terms and conditions of this Agreement. You are only subscribed for the Service, and not data, where the data shall remain as the sole property of ACSB.
You may permit any device to access and use the Service for the sole purpose of providing You with technical support and maintenance services. You may access and use the Service at any time from any place provided that You have a connection to the internet, where the performance of the internet access may vary depends on Your internet connection speed.
You are responsible to review all the details of the Subscription that You purchase, where some Subscription may provide access to one Service whereas others may provide access to more than one Service.
You shall not (and shall not allow any third party to):
(a) alter, enhance, merge, modify, adapt or translate the Service, Software and website, or create derivative works based upon the Software, or any part thereof, or separate the Software into component parts;
(b) decompile, disassemble, reverse engineer or otherwise attempt to reconstruct or discover, by any means whatsoever, any source code, underlying ideas, algorithms or file formats or programming or interoperability interfaces of the Software or of any files contained or generated using the Software, or otherwise reduce the Software to a human-perceivable form;
(c) remove or alter any product identification, trademark, copyright, confidentiality, proprietary or other notices contained in or within the Service, Software and website;
(d) disclose to any third party any performance information or analysis (including, without limitation, benchmarks) of the Service and Software except as otherwise expressly contemplated herein (provided that nothing contained in this Agreement shall prevent You from using any of the data produced by the Software for Your own business purposes);
(e) enable use of the Service and Software by duplication through virtualization or comparable technology in a manner that would exceed the number of subscriber(s) subscribed by You;
(f) register or attempt to register, whether directly or indirectly, any trademarks, trade names, logotypes or other symbols of ACSB, or any confusingly similar marks, names or symbols, nor any internet domain names containing any such trademarks, trade names or symbols;
(g) work around any technical limitations in the Service and Software or use any tool to enable features or functionalities that are otherwise disabled in the Service and Software;
(h) perform or attempt to perform any actions that would interfere with the proper working of the Service and Software, prevent access to or the use of the Service and Software by ACSB’s other subscribers, or impose an unreasonable or disproportionately large load on ACSB Software's infrastructure; or
(i) use the Service and Software for any purpose or in any manner not expressly permitted in this Agreement.
If You fail to comply with any term and condition of this Agreement, ACSB may immediately terminate Your Subscription without any notice (with all other rights of both parties and all other provisions of this Agreement surviving any such termination, subject to the further provisions of this Agreement).
INTELLECTUAL PROPERTY RIGHTS
ACSB shall own all right, title and interest, including all related intellectual property or other proprietary rights such as inventions, patents, copyrights, designs, trademarks, service marks, semiconductor or circuit layout right, trade, business or company name, indication of source or appellation of origin, trade secrets, ideas, concepts, methods, algorithms, know-how, techniques, database rights and actual property rights, whether registered or not registered (collectively “Intellectual Property Rights”), in or relating to the Service, Software and website or any part thereof.
Neither You nor Your Authorized Users acquire any rights in or related to the Service, Software and website or any part thereof, other than the rights expressly granted to You under this Agreement.
The Software, all Documentation and website which allow You to access and use the Service are protected by Malaysia and international copyright and patent laws. There are severe penalties, both civil and criminal, for intellectual property infringement.
If Your use of the Service, Software and website in accordance with this Agreement infringes or is alleged to infringe ACSB’s Intellectual Property Rights, then ACSB may, at its sole discretion, terminate this Agreement and cancel the Subscription for the Service without any notice.
You shall immediately notify ACSB in writing forthwith of any and all circumstances arising to Your attention which may constitute an infringement of any of the Intellectual Property Rights in connection therewith by any unauthorized person with a view to restraining or preventing such infringement.
You agree that nothing in this Agreement shall adversely affect any rights and recourse to any remedies, including without limitation, to injunctive relief, that ACSB may have under any applicable laws relating to the protection of ACSB's Intellectual Property Rights arising out of any use of the Service, Software and website.
For the purposes of this Agreement, “Confidential Information” means the terms and conditions of this Agreement, and any other information concerning the Service, including but is not limited to:
(a) discoveries, ideas, concepts, designs, devices, drawings, materials, specifications, techniques, models, data, feasibility study reports, market research reports, documents, processes, procedures, “know-how”, improvements, budgets, projections, forecasts, compilations, studies, analysis, branding, marketing and development plans, financial information and such other material expressed, disclosed, communicated or described or stored in any form provided by the Disclosing Party;
(b) any information described or stored in any form that relates, whether directly or indirectly, to disputes, legal proceedings and arbitration proceedings that the Disclosing Party may have with any of the contractors, consultants, suppliers or other service providers of the projects; and
(c) non-public information reasonably designated as being confidential or which, under the circumstances surrounding disclosure ought to be treated as confidential.
“Disclosing Party” means the Party who discloses Confidential Information to the Receiving Party.
“Receiving Party” means the Party that accepts, receives, views or otherwise obtains Confidential Information from the Disclosing Party.
Obligations. During the term of this Agreement, all parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (ii) each will use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care; and (iii) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. All parties further agree that obligations of confidentiality shall exist for a period of ten (10) years following initial disclosure of the particular Confidential Information.
Exclusions. Confidential Information will not include information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without obligation of confidentiality; (ii) is known to the Receiving Party at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without use of the Confidential Information; (iv) becomes lawfully known or available to the Receiving Party without restriction from a source having the lawful right to disclose the information; (v) is generally known or easily ascertainable by parties of ordinary skill in the business of the Receiving Party; or (vi) is software code in either object code or source code form that is licensed under an open source license. The Receiving Party will not be prohibited from complying with disclosure mandated by applicable law if, where reasonably practicable and without breaching any legal or regulatory requirement, it gives the Disclosing Party advance notice of the disclosure requirement.
The Receiving Party acknowledge that the value of the Confidential Information of the Disclosing Party is such that an award of damages or an account of profits may not adequately compensate the Disclosing Party in the event of a breach of this Agreement by the Receiving Party. The Receiving Party acknowledges that, without in any way compromising its right to seek damages or any other form of relief in the event of a breach of this Agreement, the Disclosing Party may seek and obtain an ex-parte interlocutory or final injunction to prohibit or restrain the Receiving Party, its employees, agents, contractors or representatives from any breach or threatened breach of this Clause.
The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control. The provisions of this Clause shall survive termination of this Agreement.
If You are using the Service, You are solely responsible for:
(a) Your and Your Authorized Users’ access and use of the Service and compliance with this Agreement;
(b) maintaining the confidentiality of Your and Your Authorized Users’ log-in information, credentials and passwords associated with Your account, and the privacy and security of Your account;
(c) any monies You transact which are processed through Your payment gateways, Your merchant account providers or any payment processors that You utilize in connection with the Service; and
(d) all activities that occur regarding Your account regardless of whether the activities are undertaken by You, Your employees or a third party (including Your contractors or agents).
Further, by using the Service, You represent and warrant that You are at least 18 years of age and that You have the legal ability, right and authority to be bound by, or bind Your organization, to the terms and conditions of this Agreement. ACSB does not sell Service to minors (below 18 years of age) but it sells the Service to adults.
If You are purchasing the Service on behalf of a minor, You agree to supervise all access and use of the Service at the website by minors under Your name or account. ACSB reserves the right to refuse such Service, terminate accounts or remove or edit content at its sole discretion.
You agree to provide ACSB with current, complete and accurate registration information as prompted by the Service registration process (“Registration Data”). You agree not to omit or misrepresent any Registration Data, and You agree to update such data to ensure that such data is current, complete and accurate. You further authorize ACSB to verify Your Registration Data and to process Your data as required for Your use of the Service, including but not limited to, reporting and analytics, billing, processing HR procedures, referring new customers, etc.
As we limit data access to the internal employees of ACSB, during support of Your use of the Service, You may need to furnish some information to ease troubleshooting. The data which is requested by ACSB’s internal employees shall be relevant to the troubleshooting and fix Your issue in using the Service. However, in any events, no sensitive information such as password shall be disclosed.
You will designate and authorize either yourself and/or one or more individual users of the Service with authority to act on Your behalf, who may access the Service by entering a confidential email and password, which will entitle them, depending on their permitted access level, to have the authority to access, review, modify and/or provide approvals on Your behalf (“Payroll Administrator”).
The Payroll Administrator will approve and submit the payroll information thereby authorizing the Service to create and transmit forms and files necessary to process Your payroll and statutory body transactions.
You will, and will cause Your authorized users to take reasonable steps to maintain the confidentiality of the authorization procedures, the email and password combination, and related instructions provided by the Service.
You agree to notify us immediately of any unauthorized access or use of Your account, login information, credentials or passwords, or any unauthorized activity in Your account, in a manner that allows ACSB to have reasonable time to act on that information, and You acknowledge that failure to immediately notify ACSB on such matters could result in unauthorized access to Confidential Information about You and Your employees.
ACSB reserves the right to suspend or terminate Your Service, without notice to You, if ACSB suspect any unauthorized activity. You agree to cooperate with ACSB in any investigation into suspected unauthorized activity. You also agree to comply with all the applicable laws, rules and regulations in connection with Your use of the Service, including data protection, privacy, data transmission and export control laws, rules and regulations.
You are responsible for any actions taken in the use of the Service by Your Payroll Administrator and/or any other Authorized Users, and for any transactions resulting from Your failure to maintain the Confidentiality of Your account.
You agree that the provision of an email or password determined by You, Your Payroll Administrator and/or any other Authorized Users, will have the same effect as providing a written signature authorizing electronic payments, submissions and other actions in the use of the Service.
ACSB will notify You via electronic communication or by other means when all data necessary to begin the Service has been received and the onboarding process has been completed.
You shall then, prior to submitting Your first payroll, review for completeness and accuracy of the Payroll Information. For purposes of this Agreement, “Payroll Information” shall mean all information posted for Your review under the Service, including but not limited to, the information used to calculate and pay employee payroll, track Your employee’s leave, track Your employee’s claim, and payments of EPF / SOCSO / PCB, which comply with the statutory laws and regulations.
You must rectify any incorrect or missing Payroll Information, either by yourself or by notifying ACSB in the manner specified in the electronic communication and within the time period specified therein. You are fully responsible for the accuracy of all the information that You have provided, submitted and/or approved, without any limitation to the penalties.
You agree that by submitting each payroll (including the first payroll): -
(a) You have approved and confirmed all Payroll Information; and
(b) You have waived and released any claim against ACSB arising out of any errors in the Payroll Information which You have not corrected or have not requested ACSB to correct such errors.
Final audit responsibility rests with You, where ACSB will not have any responsibility for verifying the accuracy of any data that You have provided or directly input via the Service or any other method. ACSB may permit, but shall not be obligated to permit, Your Payroll Administrator or any other authorised representative to communicate with ACSB by email or other means about the Service.
You acknowledge that any such email or other means of communication will be made available for Your benefit and convenience, that any Payroll Information, entries or other instructions communicated to ACSB will be deemed to have been fully authorized by You. You shall be fully responsible for the accuracy of such information, including but not limited to, any tax or other penalties arising out of it. However, ACSB may at its sole discretion, refuse to accept or act upon any such instructions.
ACSB will hold in strict confidence all data furnished by You or produced by the Service under this Agreement. Nevertheless, such parties will not be held liable if such data is released through other sources, or such parties release the data because of a reasonable belief that You have consented to such disclosure.
LIMITED WARRANTIES AND DISCLAIMERS
The Service is provided on an “as-is” and “as-available” basis by ACSB to You, to the maximum extent permitted by applicable law. ACSB shall have no responsibility or liability if the Service has been altered in any way or damaged by misuse, accident, abuse, modification or misapplication.
ACSB disclaims all representations and warranties, whether express, implied or otherwise, including but not limited to, any warranties of merchantability, a course of dealing, usage or trade practice, fitness for a particular purpose, title, data loss, non-interference, non-infringement, the accuracy, reliability, quality or content in or linked to the subscribed Service on the website.
ACSB does not warrant or represent that the Software is secure or free from bugs, viruses, interruption, errors, theft, destruction, threat of hackers, other program limitations, the Software will meet Your requirements, access to the internet or to any other service, content or data transmitted through the Service.
ACSB is not responsible for any alteration, compromise, corruption or loss of Your data, or any activity that arises from any access to, sharing or use of Your account, log-in information, credentials or passwords, or Your activities, except to the extent caused by the breach of this Agreement.
Your use of the subscribed Service and content accessible through the Service and its website is entirely at your own risk except as described in this Agreement.
The Service is not designed, intended or subscribed for use in hazardous environments requiring fail-safe controls, including without limitation, the design, construction, maintenance or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control and life support or weapons systems. ACSB specifically disclaims any express or implied warranty of fitness for such purposes.
No oral or written information or advice given by ACSB shall create a warranty or in any way increase the scope of any warranty provided herein. The Service and any related content are designed to operate and provide information with the express understanding that ACSB is not engaged in rendering legal, accounting or other professional service or services.
If legal advice or other expert assistance is required, the service of a competent professional should be sought. ACSB expressly disclaims any representations or warranties that Your use of the Service will satisfy any statutory, regulatory or other legal obligations, or will assist with, guarantee or otherwise ensure compliance with any applicable laws, rules or regulations.
In order to use the Service, You must submit accurate salary/wage and Payroll Information during the onboarding process. ACSB will not be liable for any penalty, interest or other liability that results from inaccurate or incomplete information which You have supplied. The Payroll Information must be reconciled with Your employee’s previous payslips or previous Payroll Information for the current tax year.
Thereafter, You shall timely and accurately update all wage and Payroll Information as necessary to reflect changes with additional information requested from time to time by the Service. It is Your responsibility to submit complete and accurate information and to remit the fees due in connection with the Service. Any penalty incurred due to late remission of payment or inaccurate information provided by You will be your sole responsibility.
You further agree to hold ACSB harmless from such liability. ACSB, at its option, may decide not to submit Your payroll monthly or yearly forms, make payments to the various statutory bodies, or otherwise process Your payroll if there are any unresolved problems with any information requested by the Service or submitted by You.
You are responsible for:
(a) depositing any liabilities to date, incurred to the statutory bodies (before and after the Service);
(b) submitting any monthly / yearly forms / payments to statutory bodies that are now due; and
(c) cancelling any prior payroll service.
EXCLUSIONS OF AND LIMITATION OF LIABILITY
You unconditionally agree to indemnify and hold ACSB harmless, from and against any and all third-party claims, losses, liabilities, damages, lawsuits, proceedings, costs and expenses (including without limitation attorneys' fees and costs) (collectively as “Claims”) arising out of or relating to You and/or Your Authorized Users for the followings:
(a) use of the Service and any related content; and
(b) breach or violation of this Agreement, state or federal laws, rules or regulations, or any third party's rights, including but not limited to, infringement of any copyright, violation of any proprietary rights or invasion of any privacy rights.
If You are obligated to indemnify ACSB, then ACSB may, in its sole and absolute discretion, control the defence and disposition (including its possible settlement) of any Claim at Your sole cost and expense. Without limitation of the foregoing, You will not settle, compromise or in any other manner dispose of any Claim without the written consent of ACSB. Your obligations under this Clause will survive the termination or expiration of this Agreement.
Support service only covers technical issues or questions resulting directly out of the operation of the Service, including online help, internet, chat, email, and telephone, which do not require payment of any additional fee(s). ACSB will not provide You with generic consultation, assistance, or advice under any circumstances.
If ACSB determines that a material error in the Software exists and significantly impairs the usability and utility of the Service, ACSB agrees to use reasonable commercial efforts to correct or provide a usable work-around solution in an upcoming maintenance release or update, which is made available at certain times at ACSB sole discretion.
If ACSB, in its discretion, requests written verification of an error or malfunction discovered by You or requests supporting example files that exhibit the problem, You shall promptly provide such verification or files, by email, telecopy or overnight mail, setting forth in reasonable detail the aspects in which the Service fails to perform. You shall use reasonable efforts to cooperate in diagnosis or study of errors.
ACSB may include error corrections in maintenance releases, updates or new major releases of the Software. ACSB is not obligated to fix errors that are immaterial. Immaterial errors are those that do not significantly impact use of the Service.
FEES AND PAYMENTS
You are required to pay monthly Subscription Fee to be eligible for the continued use of the Service beyond the due date. Failure to pay the monthly Subscription Fee will result in an automatic lock on the access and usage of the Service. Full Service functionality will not be restored until You reactivate Your account, which may require payment of the Subscription Fee owing to ACSB and interest charges for the late payment. You may use the Service free of charge for one (1) Subscription with up to three (3) employees. You will only be required to subscribe for the Service ONCE You exceed this threshold limit of three employees.
The following terms shall apply if You are the User paying for the Service, unless otherwise notified in writing by ACSB.
ACSB reserves the right to adjust the Subscription Fee from time to time, at its sole discretion, which will be effective when posted on the Service or when You are notified by other means. ACSB will try to, but is not obligated to, provide thirty (30) days prior notice for any changes in the Subscription Fee. If such changes are not acceptable, You may cancel the Service as provided herein prior to the time when it takes effect. Your continued use of the Service constitutes Your agreement to those changes.
If Your payment and registration information is not accurate, current and complete, and You do not notify ACSB promptly when such information changes, ACSB may suspend or terminate Your account and refuse Your use of the Service.
If You do not notify ACSB of any updates to Your payment particulars (e.g., credit card expiration date), to avoid interruption of Your service, ACSB may participate in programs supported by Your card provider (e.g., updater services, recurring billing programs, etc.) to try to update Your payment information, and You shall authorize ACSB to continue billing your account with the updated information that ACSB obtained.
ACSB will automatically renew your monthly subscription at the end of each subscription period, as required for You to maintain the access to the Service, unless Your subscription or this Agreement is cancelled or terminated. If You do not wish to renew the Subscription, You must inform ACSB at least fourteen (14) days prior to the renewal date. Additional terms on cancellation, termination or renewal may be provided to You on the website for the subscribed Service. You are however, still required to pay any amount due and payable to ACSB even though You have cancelled or terminated Your Subscription under this Agreement.
If any amount payable by You is dishonoured or returned for whatsoever reason, including but not limited to, non-sufficient funds (NSF), account closed, inability to locate account, or reversal by You and/or Your bank, ACSB may:
(a) reverse any corresponding credit issued to You or any other party;
(b) apply any money currently held by ACSB to any amount owed to ACSB by You;
(c) initiate another debit in substitution for the dishonoured debit until the debit is honoured and to initiate separate debits to cover any NSF fee or dishonoured payment fees;
(d) charge You a one-time NSF penalty fee for each occurrence;
(e) report this information to any and all credit agencies, financial institutions and/or statutory bodies; or
(f) immediately terminate this Agreement.
ACSB may assess and collect interest at the rate of one and a half percent (1.5%) per month, which is equivalent to 18% per annum, on any amount due and payable but remaining unpaid by You calculated on a day to day basis until the date of full payment.
TERM AND TERMINATION
This Agreement shall commence on the date You subscribed for the Service and shall continue until Your subscription under this Agreement is cancelled or terminated, whichever is earlier.
Your rights under this Agreement may be terminated or suspended by ACSB at any time for any reason by giving fourteen (14) days written notice to you. However, Your rights under this Agreement may be terminated or suspended by ACSB immediately and without notice if:
(a) You fail to make any payment due for the Subscription of the Service;
(b) You fail to comply with any terms and conditions of this Agreement; or
(c) You no longer consent to receive electronic communications.
Additionally, ACSB reserves the right (but has no obligation) to delete all your information and account data stored on ACSB Software’s servers if Your subscription has been terminated or if You have not renewed a Subscription for the Service.
You may cancel or terminate Your Subscription under this Agreement at any time for any reason by giving fourteen (14) days written notice to ACSB.
Upon cancellation or termination of Your Subscription under this Agreement for any reason, all Your rights under this Agreement shall be terminated and You must immediately cease using the Service.
ACSB suggests that You retain Your own copies of any data that You may need as ACSB is no longer responsible for providing You with access to such data after cancellation or termination of Your Subscription under this Agreement. Any such copy shall in all aspects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Service.
Any cancellation or termination of Your subscription under this Agreement shall not affect ACSB’s rights hereinunder and shall not relieve You of Your obligations to make all accrued payments through the date of cancellation or termination, or relieve You from any liability on account of a breach of this Agreement arising prior to or following the effective date of cancellation or termination.
Further, You agree that upon cancellation or termination of Your subscription under this Agreement, ACSB shall not be liable to You or any third party for any termination of Your access to the Service or deletion of Your information and account data. ACSB reserves the right to terminate any free account at any time.
ANTI-BRIBERY AND CORRUPTION
The Parties hereby agree as follows:
(a) Comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and corruption, including the U.S. Foreign Corrupt Practices Act of 1977 and the Malaysian Anti-Corruption Commission Act 2009, as amended from time to time (the “Relevant Requirements”);
(b) Not to engage in any conduct which would constitute an offence under any of the Relevant Requirements;
(c) Not to do, or omit to do, any act that may lead the other party to be in breach of any Relevant Requirements;
(d) Promptly report to the other party any request or demand for any undue financial or other advantage received by it relating to this Agreement; and
(e) Have and maintain in place during the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate.
PERSONAL DATA PROTECTION
Each party must comply with all laws and legal requirements applicable to the performance of its respective obligations under this Agreement, including, without limitation, laws or regulations applicable to the Malaysian Personal Data Protection Act 2010 in ensuring Notice is given and Consent obtained in the sharing or disclosing of an individual’s personal information / data.
You allow ACSB to combine identifiable and non-identifiable information that You or Your Authorised Users have entered or uploaded by using the Service, where ACSB may use such information to improve the Service or to design promotions and provide ways for You to compare business practices with other users.
You agree that ACSB may use Your name and logo to identify You as a ACSB’s customer on its website or in other sales or marketing materials, provided that ACSB will not issue any press release without Your prior consent.
Each Party shall act solely as an independent contractor, and nothing in this Agreement shall be construed to give either Party the power or authority to act for, bind, or commit the other Party in any way. Nothing herein shall be construed to create the relationship of partners, principal and agent, or joint-venture partners between the Parties.
A Party waives a right under this agreement only if it does so in writing.
A Party does not waive a right simply because it:
(a) fails to exercise the right;
(b) delays in exercising the right; or
(c) only exercises part of the right.
A waiver of one breach of a term of this Agreement does not operate as a waiver of another breach of the same term or any other term.
THIRD PARTY PRODUCTS AND SERVICES
The Service may contain or may contain links to third party information, websites, products, services or resources that are not owned or controlled by ACSB. ACSB provides these links merely as a convenience and the inclusion of such links does not imply an endorsement representation or warranty by ACSB of any such third party information, websites, products, services or resources.
If You access or use such third party content through the Service, You do so at Your own risk. You agree that ACSB is not responsible for third party content accessible through the website, including opinions, advice, statements and advertisements, and understand that You bear all risks associated with the use of such content and that ACSB is not responsible for any loss or damage of any sort You may incur from dealing with any such third party.
ACSB may at any time conduct, or appoint an external auditor to audit Your compliance with the terms and conditions of this Agreement (“Audit”). ACSB shall provide You with a fourteen (14) days advanced written notice of such Audit, except where the Audit is conducted electronically.
In connection with the Audit, You shall grant reasonable assistance and cooperation and such access to premises, systems and materials as necessary to determine Your compliance with this Agreement.
Without prejudice to the foregoing, the Audit may also be conducted electronically utilizing the audit functionality of the Software, designed to enable ACSB to automatically monitor that the use of the Service complies with the terms and conditions of the Subscription, and to detect and notify ACSB of installations and use of unsubscribed or otherwise infringing copies of the Software. You expressly agree and consent to such monitoring and reporting to ACSB.
If the Audit results determine that You are not in compliance with the terms and conditions of the Subscription, You shall immediately remedy such non-compliance, without prejudice to any rights or remedies that may be available to the ACSB, and compensate ACSB for reasonable costs of the Audit.
Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control, including by way of illustration (but specifically not limited to) fire, flood, explosion, action of the elements, acts of God, accidents, epidemics, strikes, lockouts or other labour troubles or shortages, inability to obtain or shortage of material, equipment or transportation, insurrections, riots or other civil commotion, war, enemy action, acts, demands or requirements of any government or any other cause beyond the control of the parties.
Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure where such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
Thereafter ACSB shall use its best endeavours to resume the commercial production of the Software.
If a default due to an Event of Force Majeure shall continue for more than thirty (30) days then the party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
Any notice or other document to be given under this Agreement and all other communications amongst the Parties with respect to this Agreement shall be in writing and may be given or sent by:
(b) registered post, first class post or express or air mail or other fast postal service; or
(c) facsimile or other electronic media.
Any notice or other document shall be deemed to have been duly served upon and received by the addressee:
(a) if delivered by hand, at the time of delivery;
(b) if sent by registered post, first class post or express or air mail or other fast postal service, within ten (10) days of dispatch; and
(c) if transmitted by way of email or other electronic media, at the time of transmission.
In proving the giving of a notice or any other document under or in respect of this Agreement it shall be sufficient to show:
(a) in the case of registered post, first class post or express or air mail or other fast postal service, that the notice or other document was contained in an envelope which was duly addressed and posted; or
(b) in the case of email or other electronic media, that email or other electronic media was duly transmitted from the dispatching terminal, as evidenced by a transmission report generated by the transmitting equipment.
This Agreement embodies the entire understanding of the Parties in respect of its subject matter and shall not be affected by and shall override and supersede any and all prior agreements, terms, conditions, obligations, correspondence of any nature, promises, representations, understanding or implications whether oral or written, expressed or implied.
ACSB reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Services with or without notice to you. You agree that ACSB will not be liable to You or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Services for any reason.
ACSB reserves the right to change the terms and conditions of this Agreement at any time, which will be effective when posted on the website or when You are notified by other means. ACSB will try to, but is not obligated to, provide thirty (30) days prior notice of any such material change. If You do not wish to be bound by such change, You may discontinue using and terminate the Service before the change becomes effective. Your continued use of the Service after the change becomes effective, indicates Your agreement to the change.
INVALIDITY AND SEVERABILITY
If one or more of the provisions of this Agreement is invalid, illegal or unenforceable in any respect under any applicable law or decision, the validity, legality or enforceability of the remaining provisions contained in this Agreement will not be affected or impaired in any way.
All parties will, in any such event and where legally possible, execute such additional documents as the other party may reasonably request in order to give valid, legal and enforceable effect to any provision which is determined to be invalid, illegal or unenforceable provided that such new provisions fulfil the intentions of the parties as expressed by the provision determined to be invalid, illegal and unenforceable and which new provisions have the closest economic effect to such provisions determined to be invalid, illegal and unenforceable.
This Agreement, and any amendments hereto, by whatever means accepted, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effect as if it were an original signed version thereof delivered in person. Neither party hereto shall argue that a contract was not formed hereunder based on either:
(a) the use of electronic means to deliver a signature or to indicate acceptance of this Agreement; or
(b) the fact that any signature or acceptance of this Agreement was transmitted or communicated through electronic means, and each party forever waives any related defense.
All disputes, controversy or claim arising out or terms relating to this Agreement, or the breach, termination or invalidity thereof, shall be governed by the laws of Malaysia.
In the event of any dispute arising from this Agreement, and such dispute cannot be resolved amicably, such dispute is to be finally settled by arbitration in accordance to the Rules of the Asian International Arbitration Centre (“AIAC”) (formerly known as Kuala Lumpur Regional Centre for Arbitration) for the time being in force, which rules are deemed to be incorporated by reference into this clause.
It is agreed that:
(a) the dispute is to be resolved by one (1) arbitrator whose appointment shall be mutually agreed upon by both parties. The appointment of the arbitrator shall be made within thirty (30) days of the referral of the dispute to arbitration. If the parties cannot mutually agree on the appointment of an arbitrator, the parties agree for the AIAC to appoint an arbitrator;
(b) the venue for arbitration shall be the AIAC and proceedings shall be conducted in the English language;
(c) the arbitrator shall be entitled to decide on which party should bear the cost of the arbitration; and
(d) the decision of the arbitrator shall be final and binding on both parties.
ACSB may communicate with You via email at the email address associated with Your account, or through the Service (e.g., through pop-ups), or ACSB’s blog or website regarding Your account, system updates or other matters related to the Service and Your account. You may opt out of receiving e-mails from ACSB by terminating the Service. If you have any questions concerning to the terms and conditions of this Agreement, You may contact ACSB at:
Auto Count Sdn Bhd (751600-A)
B2-3A-01, Level 3A, Block B2
Meritus @ Oasis Corporate Park
No. 2, Jalan PJU 1A/2, Ara Damansara
47301 Petaling Jaya, Selangor
Tel: +603-3080 8888
Fax: +603-7621 0911