This Service Agreement is between W-Locate Pte Ltd (“The Company”), and the App User. The App User agree with the following clause before using the application, which download from Google Play Store.
1 Ownership
The App User Content
1.1 All content or other material provided to The Company by The App User for broadcast, streaming, display or other transmission through the Services and for storage on the Services is and shall remain the exclusive property of The App User, as the case may be.
Use of information
1.2 In addition to any other restrictions specified elsewhere in this Services Agreement, at no time shall The Company use any of the The App User’s information, including but not limited to, Customer lists, vehicle database, fleet management data or other personally identifiable information for any purpose other than compliance with its obligations under this Services Agreement. Without limitation to the foregoing, The Company specifically agrees not to use Customer lists or information, including without limitation, Customer email addresses, to target The App User’s Customer and/or customers for the purpose of promoting, advertising or offering The Company services or products or the products or services of a third party, unless otherwise mutually agreed to in writing between The App User and The Company and subject always to the Customer providing prior written consent to the The Company’s use of Customer lists or information and Customer’s email addresses.
2 Software
2.1 The Company hereby grants or shall procure the grant to the The App User and its related companies a non-exclusive licence to use The Company’s Background IP on Fleet Management and the Third Party Software (for the full term of the copy and any other Intellectual Property Rights herein) for the purposes of using the Devices pursuant to the terms of this Agreement.
2.2 The Company agrees to grant The App User, The App User Affiliates and Customers for the duration of this Services Agreement and at no additional cost to The App User, The App User Affiliates and Customers, non-exclusive and non-transferable license to use the Background IP and New Release, including their related documentation, for the purposes of this Services Agreement. (“New Release” means a subsequent release version of the Software that corrects defects and/or provides significant additional functionality, improved performance, or material changes to the documentation that is generally made available to licensees of the Software at no additional charge. For purposes of this Services Agreement, “Software” shall include New Releases.) Unless otherwise agreed in writing between the Parties in the Schedules, the Software licensee shall be on the following terms:
a) The App User may combine the Software with other programs or materials to form an updated work for internal use by The App User and The App User Affiliates, provided that upon discontinuance of use or termination of the Software license, the Software will be removed from the updated work and returned to The Company;
b) The App User and The App User Affiliates will not reverse engineer, decompile or disassemble the Software;
c) The App User may make and maintain a reasonable number of archival copies (for backup purposes) of the Software. Each copy will contain all legends and notices and will be subject to the same conditions and restrictions as the original;
d) The App User shall not (i) use the Software in a service bureau mode, or (ii) transfer operational use of the Software to a third party without The Company’s prior consent in writing; and
e) The Company shall indemnify The App User against any claim by any third party for infringement or alleged infringement of any Intellectual Property Rights resulting from the use of the Software in accordance with this Services Agreement in the same manner as if there were an infringement or alleged infringement of Intellectual Property Rights of the Deliverables under Clause 19.
2.3 To the extent that the Software is third party software, and without prejudice to Clause 6.1, The Company hereby assigns to The App User and The App User Affiliates the benefit of the terms of any guarantee or warranty, if any, for such third party software as provided by its licensor.
2.4 The Services (or any part thereof) may contain licensed internal codes and certain programmes which are licensed under the terms and conditions of shrink-wrap licenses accompanying the Software (“Shrink-wrap Software”). The Company or certain third parties own all rights, title and interest in and to such Shrink-wrap Software and The App User’s use of the Shrink-wrap Software shall be subject to the corresponding shrink-wrap license.
2.5 The Price is inclusive of the license fees, delivery and installation of the Software and Shrink-wrap Software, if applicable.
3 Price
8.1 The Company shall charge The App User the Price set out in the In-App Purchase.
3.2 The Company shall invoice The App User the Price in arrears on a monthly basis. The invoice shall be issued in accordance with The App User’s invoicing instructions and requirements as may be notified by The App User to The Company in writing.
3.3 The App User will pay The Company the undisputed charges in accordance to the payment term set out in the In-App Purchase.
3.4 The Company has right to revoke the The App User’s access right to the Software, if payment not.
3.5 All charges and fees specified in the Price are the total charges payable by The App User to The Company. No additional charges or fees will be payable by The App User on account of any present or future levies, import duties, taxes, charges, or other fees, if any (including but not limited to value-added taxes, excise taxes, remittance taxes, remittance discounts, stamp taxes, exchange taxes, exchange discounts, taxes based on the income of The Company, registration fees, research and development fees (levies), contributions, and other charges now or hereafter imposed by any applicable government entity or taxing authority).
3.6 Notwithstanding anything in the Baseline Documents and materials provided by The App User pursuant to this Services Agreement, The Company shall be deemed to have informed itself of all matters necessary for the proper execution and complete performance of this Services Agreement and in all matters whatsoever that may in any way affect the prices quoted by it. Any neglect or failure whatsoever on the part of The Company to obtain any necessary and reliable information shall not relieve The Company from any risks or liabilities for the complete performance of this Services Agreement and The App User shall not be liable for any claims for additional payments or damages whatsoever for any errors or inaccuracies whatsoever in the Baseline Documents and materials provided by The App User.
4 Data
Data usage
4.1 The Parties acknowledge that the Services and The Company’s technology may collect and aggregate certain personally and non-personally identifiable information and data regarding the use and operation of the Services and The Company’s technology by The App User and Customers (“Data”); provided, however, that such use will be limited to The App User or its licensor obtaining metrics regarding the use of the Services and providing technical support to Customers or otherwise responding to legal requirements such as subpoenas from law enforcement agencies, except that both Customer and The App User may intercede in such law enforcement actions to the extent that they may not be legally bound by such actions due to jurisdictional matters or other applicable law). Subject to the foregoing proviso, The App User acknowledges that The Company may (i) utilize and disclose such Data as required by law, and (ii) utilize and disclose Data consistent with The Company’s and The App User’s privacy policies, without a duty of accounting to The App User, provided that any such Data does not identify The App User or its Customers or any individual of the The App User or a Customer. The Company further agrees that it shall not harvest nor permit others to harvest email addresses or personally identifiable information pertaining to any users of the Service. Both Parties agree to comply with all applicable contractual obligations, privacy and other nondisclosure policies, and legal obligations of the other Party, including, policies, laws and regulations.
Data Retention and Access
4.2 The Company shall not retain Data and Stored Data for any longer than is necessary for the purposes under this Services Agreement. The Company shall, and shall ensure that its partners shall, take all appropriate technical and organisational security measures to ensure that Data and Stored Data are protected against loss, destruction and damage, and against unauthorised access, transmission, recording, alteration, use, modification, disclosure or other misuse, and that only key members of The Company’s staff have access to Data and Stored Data.
Data Transfer
4.3 If, at any time and as a part of the Services provided under this Services Agreement or otherwise in connection with this Services Agreement, The Company is required to transfer any Data or Stored Data for the purposes of or with the intention of processing of such Data or Stored Data to The App User, The Company shall ensure such transfer does not contravene any data protection laws, implementing legislation or regulations applicable to the Parties and/or Data and Stored Data to be so transferred. “Processing” for the purpose of this clause shall mean any operation or set of operations which is performed upon Data or Stored Data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Data Breaches
4.4 The Company shall immediately notify the The App User when it becomes aware of a breach of Clause 20. The Company acknowledges that any breach of its obligations under Clause 20 may result in a criminal offence or an implementation by relevant personal data protection agencies of measures necessary to prevent a Data transfer. The Company shall indemnify the The App User and keep the The App User fully and effectively indemnified on demand (and shall pay such sums to The App User as would indemnify and keep indemnified The App User) in respect of any type of liability, losses, damages, claims, demands, actions, charges, costs (including legal/attorney fees) and expenses incurred by The App User arising out of or in connection with any breach of Clause 20. The Company acknowledges and agrees that, due to the unique nature of Data and Stored Data, a remedy at law for breach by The Company of Clause 20 may not be adequate and that such breach would cause irreparable harm to The App User and/or Customers; therefore The App User shall be entitled to seek equitable relief such as injunction or specific performance, in addition to whatever remedies it might have at law or under this Services Agreement.
5 Warranties
5.1 In addition to any warranties given by The Company elsewhere in this Services Agreement, The Company represents and warrants that:
5.1.1 it has all right, power and authority to enter into this Services Agreement and fully perform its obligations under this Services Agreement;
5.1.2 it has all necessary licenses, permits, authorizations, approvals or consents necessary for the performance of its obligations under this Services Agreement;
5.1.3 the execution of this Services Agreement by The Company does not violate any Services Agreement existing between The Company and any third party;
5.1.4 its operations and proceedings in connection with this Services Agreement shall at all times during the term of this Services Agreement be conducted in conformity with all the laws and regulations of any jurisdiction which may govern, or regulate the performance of The Company’s obligations under this Services Agreement;
5.1.5 the Services shall perform in accordance with the specifications and other requirements (including interoperability and interfacing with Legacy Services as well as communication networks and information Services external to the Services) contained in the Schedule 1;
5.1.6 the Deliverables shall be free from defects in materials, workmanship, design and installation and that the Software and Services shall operate in accordance with this Services Agreement and the Service Levels as specified in Schedule 3, The Company’s written documentation, specifications and functionalities of such Software and Services;
5.1.7 the Services shall be provided properly and efficiently in a professional manner with all reasonable due care and skill and in accordance with good industry practice;
5.1.8 the Services shall be performed in compliance with all applicable laws, enactments, orders, regulations and other similar instruments in force from time to time. In the absence of such applicable laws, enactments, orders, regulations and other similar instruments, the Services shall conform to relevant internationally recognized technical standards;
5.1.9 the Services shall be rendered by professionally trained, qualified personnel who will perform the tasks in a professional and workmanlike manner consistent with the standards of practice common in the industry for such services substantially similar to the Services;
5.1.10 the provision of the Services by The Company under this Services Agreement shall not infringe any third party Intellectual Property Rights;
5.1.11 the Software shall be free from any third party lien, claim, title or interest;
5.1.12 it shall use its reasonable best efforts to ensure that the Software will be or has been developed using secure coding practices in a manner that minimizes security flaws within the Software in the compliance with secure coding best practices policy;
5.1.13 the Software does not: (i) contain any coded instructions, routine, programs, computer viruses, spyware, worms, time-outs, time bombs, back doors, easter eggs, any harmful or malicious code or other method intended to or which may damage, disrupt, inconvenience or that would enable any person or computer system, to obtain unauthorized access to the Software, or the computer system or network on which the Software is installed or that may or will be used to access, modify, delete or damage any data files or other computer programs used by The App User or Customer and that for this purpose The Company warrants that it has used the most comprehensive and up to date virus checker available; or (ii) cause the Software, other software, or the computer system or network on which the Software is installed to perform an unauthorized function or to operate in an unauthorized manner. The Company will take all reasonable precautions to ensure it does not introduce any viruses or cause any viruses to be introduced into any The App User’s and/or Customer’s systems and equipment;
5.1.14 there are no disabling programs or devices in any Software and nor will The Company introduce any at any time;
5.1.15 it will only make use of any Customer data, including but not limited to Data and Stored Data, in accordance with the Services contemplated under this Services Agreement;
5.1.16 it is and shall continue to be in a position to provide the Services for the duration of this Services Agreement; and
5.1.17 it has not entered into a contract or accepted an obligation which may prevent The Company from performing or in any material respect adversely affect the performance of its obligations under this Services Agreement and that it shall not do so during the period of the performance of the Services.
5.2 There be no refund if the Services fail to conform to any of the warranties set out in sub-Clause 5.1 above and the failure is not caused by any act or omission of The App User,
6 Intellectual Property Rights
6.1 The ownership of any materials or documentation (including any software) and any Intellectual Property Rights therein created by or licensed to any Party prior to and/or outside the scope of this Services Agreement (“Excluded Materials”) shall be unaffected by any provision in this Services Agreement. Any material or documentation created by any Party prior to this Services Agreement but pursuant to the tender, request for proposal or request for information for the Services shall not be “Excluded Materials” for the purposes of this Clause 6.
6.2 Where The Company incorporates any Excluded Materials into the Services, The Company hereby grants to The App User, The App User Affiliates and/or Customers, at no additional cost, a non-exclusive, non-transferable, and license to use, execute, reproduce, display, perform, modify and create derivative works of The Company’s Excluded Materials or such portion thereof that are to be used in conjunction with the operation and maintenance of the Services, solely and exclusively for The App User’s and/or The App User Affiliates’ internal use.
6.3 All title, rights and interests in any information (including business rules), materials or assets supplied by The App User to The Company as well as all Intellectual Property Rights thereof (“The App User’s Intellectual Property”) shall remain or be vested in The App User or its licensors. All developments, modifications, additions and enhancements made to the The App User’s Intellectual Property by the The Company or its personnel pursuant to this Services Agreement (collectively, “The App User’s Systems”) will be and remain the property of the The App User and the The Company will obtain no rights or interests in the The App User’s Systems or any component thereof. Accordingly, the The Company shall keep the The App User’s Systems confidential save that the The App User hereby grants the The Company access to and use of the The App User’s Systems as the The Company may reasonably require to perform the Services for the The App User as contemplated by this Services Agreement. The provisions of this Clause 19.4 shall survive termination of this Services Agreement without limitation of time.
6.4 The Company shall:
6.4.1 fully indemnify The App User against any claim by any third party for infringement or alleged infringement of any Intellectual Property Rights which arises or would arise as a result of the use of any of the Deliverables or as a result of The Company’s performance of the Services, provided that
a) The Company is notified as soon as possible in writing of any claim,
b) The Company is given immediate and complete control of any such claim,
c) The App User does not prejudice The Company’s defense of such claim and
d) The App User gives The Company all reasonable assistance with such claim (at the expense of The Company);
and
6.4.2 in the event of an alleged infringement being made out:
6.4.2.1 forthwith make without charge to The App User such alterations, modifications or adjustments to the Deliverables as shall be necessary to make them non-infringing; or
6.4.2.2 procure for The App User the right to continue using the Deliverables; or,
6.4.3 Notwithstanding Clauses 6.4.1 and 6.4.2, The Company is not responsible for any claim by any third party for the infringement of any Intellectual Property Rights to the extent the claim is caused by:
a) the misuse of the Deliverables by The App User;
b) the use of the Deliverables by The App User other than in accordance with applicable documentation; and
c) the failure to use corrections or enhancements to the applicable Deliverables provided by The Company to The App User when advised of the possibility of infringement by The Company.
7 Confidentiality
7.1 For the purpose of this Services Agreement, the term “Confidential Information” shall mean:
7.1.1 all The App User-related information and materials, including fleet data, financial accounts, business plans and policies, contractual arrangements or any dealings, transactions or affairs of The App User received or produced by The Company in the course of performing its obligations under this Services Agreement;
7.1.2 information relating to this Services Agreement and its Schedules or any specification, plan, drawing, pattern, sample, document, material or information disclosed by The App User to The Company in relation to this Services Agreement;
7.1.3 any of the Deliverables and all information pertaining to the Services and the implementation of the Services; and
7.1.4 any documents or proprietary materials provided by either Party (whether before or after the date of this Services Agreement) which is marked “Restricted”, “Confidential” or “Secret” or in a manner which gives notice of its confidential nature.
7.2 The Party (“Recipient”) receiving or acquiring the Confidential Information of the other Party (“Disclosing Party”) agrees that the Recipient shall use the Disclosing Party’s Confidential Information solely in accordance with the provisions of this Services Agreement and will not disclose, or permit to be disclosed such Confidential Information, directly or indirectly, to any third party without the Disclosing Party’s written permission and, without prejudice to the generality of the foregoing, the Recipient undertakes to:
7.2.1 effect and maintain adequate security measures to safeguard such Confidential Information from access or use by any unauthorized person;
7.2.2 ensure that such Confidential Information shall only be disclosed to those of the Recipient’s employees, agents or subcontractors with a need to know and that such persons are aware of and are bound by similar confidentiality terms as those set out in this Clause 20; and
7.2.3 notify the Disclosing Party if the Recipient becomes aware of any unauthorized disclosure or use of such Confidential Information by any person and upon request assist the Disclosing Party in connection with any proceedings which the Disclosing Party may institute against any such persons.
7.3 Subject to the requirements of any applicable law or regulation, but notwithstanding this Clause 20, the Recipient bears no responsibility for safeguarding information that is public knowledge or already known to the Recipient at the time of disclosure or subsequently comes lawfully into the possession of the Recipient from a third party or is disclosed in compliance with law, a requirement of a governmental agency, stock exchange or pursuant to a court/arbitral order.
7.4 Each Party acknowledges and agrees that, due to the unique nature of Confidential Information, a remedy at law for breach of this Clause 18 may not be adequate and that such breach would cause irreparable harm to the non-breaching party; therefore the non-breaching party shall be entitled to seek equitable relief such as an injunction or specific performance, in addition to whatever remedies it might have at law or under this Services Agreement.
Publicity
7.5 Neither Party shall publicly announce or disclose the terms or conditions of this Services Agreement, or advertise or release any publicity, including any references in product presentations to potential marketing partners, regarding this Services Agreement or the activities hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld and/or delayed.
8 Indemnity
8.1 The Company shall indemnify The App User on a full indemnity basis against any and all damages, losses, costs, charges, expenses, liabilities, claims, demands, proceedings and actions which The App User may sustain or incur or which may be brought or established against The App User by any person and which in any case arises out of, in relation to or by reason of:
8.1.1 the negligence, recklessness or willful misconduct of The Company, its employees or agents in the provision of the Services;
8.1.2 any unauthorized act or omission of The Company, its employees or agents;
8.1.3 any loss or damage to property; and/or
8.1.4 any death or personal injury.
8.2 The Company shall at all times indemnify and hold The App User harmless for all loss or damages to their own equipment, materials and other things brought onto The App User’s or Customers’ premises from whatever cause.
9 Limitation of Liability
9.1 In no event will either Party’s liability for damages, losses, costs or expenses suffered or incurred by the other Party arising under or in connection with this Services Agreement (whether in contract, tort, misrepresentation, negligence, strict liability in tort or by statue or otherwise) be greater than the following:
The total Price paid or due payable by The App User to The Company under this Services Agreement for twelve (12) months immediately preceding the event that gives rise to the liability.
9.2 In no event shall either Party be liable for consequential, incidental, indirect, special or punitive damages, losses, expenses or loss of profits.
10 Taxes and Levies
10.1 If The App User is required by applicable law to withhold or deduct any tax on any payments to The Company under this Services Agreement, The App User shall not deduct such sum from the payments and any amounts owing to The Company under this Services Agreement.
10.2 Unless otherwise agreed by the Parties in writing, all prices quoted to The App User shall be deemed to be inclusive of all government tax and levy including customs and excise duties but exclusive of Goods and Services Tax (“GST”).
11 Variation of Services Agreement
Any variation to this Services Agreement is effective only upon the written agreement of the Parties.
12 Severability of Entire Services Agreement
12.1 The invalidity or unenforceability of any term of this Services Agreement shall in no way affect the validity or enforceability of the remaining terms, which shall remain in full force and effect.
12.2 This Services Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein and there are no agreements, understandings, promises, conditions or terms, oral or written, express or implied, including those that The Company may issue, concerning the subject matter herein which is not merged into this Services Agreement and superseded hereby.
13 No Waiver
13.1 No failure to exercise, nor any delay in exercising on the part of either Party, any right, power or privilege under this Services Agreement, shall operate as a waiver or in any way prejudice the exercise of such right, power or privilege, nor shall any single or partial exercise by either Party of any right, power or privilege preclude any other or further exercise of the same or any other right, power or privilege. The rights and remedies provided in this Services Agreement are cumulative and not exclusive of any rights and remedies otherwise provided by law.
13.2 The acceptance, verification or authentication of any invoice or statement, the payment of any charges by The App User under this Services Agreement or the conduct or approval of any inspection, review, evaluation or test by or on behalf of The App User, shall not be regarded as constituting acceptance by The App User of or as evidence as to the validity or correctness of any statement or invoice tendered by The Company or the compliance by The Company with its obligations under this Services Agreement.
14 Force Majeure
14.1 If either Party is prevented from or delayed in the performance of its obligations under this Services Agreement by a Force Majeure Event arising after the formation of this Services Agreement, that Party may notify the other Party of the existence of the Force Majeure Event and the contractual obligations of the Parties under this Services Agreement will be suspended as at the date of receipt of the Notice. Neither Party shall be liable to the other Party for any period of delay (“Force Majeure Period”) in the performance of this Services Agreement directly caused by a Force Majeure Event provided such Party shall have first given the other Party written notice immediately upon the occurrence of the Force Majeure Event.
14.2 If The Company is so delayed and the Force Majeure Period exceeds twenty-eight (28) days, The App User shall have the option to, by written notice to The Company, terminate this Services Agreement immediately in whole or in part and have no liability for such termination. The Company shall have a similar right of termination in the event that the Force Majeure Period exceeds ninety (90) days.
14.3 So long as the Force Majeure Event continues, The App User may contract with other parties for the supply of any items and/or services which The Company has failed to supply in accordance with this Services Agreement due to the Force Majeure Event. The Price shall be adjusted accordingly.
15 Applicable Law, Jurisdiction & Dispute Resolution
15.1 This Services Agreement shall be governed by and interpreted in accordance with the Laws of Malaysia for every purpose.
15.2 In the event that any dispute between the Parties cannot be resolved or settled through negotiations between the senior management of the Parties, then such dispute may be resolved by court proceedings in the courts of Malaysia.
15.3 Each Party shall bear its own costs and expenses of any dispute resolution proceedings. However, the prevailing Party shall be entitled to recover such costs and expenses, including reasonable legal fees and expenses, from the other Party.
15.4 Each Party acknowledges that the timely and complete performance of its obligations pursuant to this Services Agreement is critical to the business and operations of the other Party. Accordingly, in the event of a dispute between The App User and The Company, each Party shall continue to perform its obligations under this Services Agreement in good faith during the resolution of such dispute unless and until this Services Agreement is terminated in accordance with the provisions of this Services Agreement.
16 Interpretation
16.1 In this Services Agreement unless the context otherwise requires:
16.1.1 words importing the singular include the plural and vice versa;
16.1.2 words which are gender neutral or gender specific include each gender;
16.1.3 an expression importing a person or party includes a company, partnership, joint venture, association, corporation, a government agency or any organization having legal capacity;
16.1.4 the headings and marginal notes in this Services Agreement are for convenience of reference only and are not part of this Services Agreement and shall not in any way affect the interpretation of this Services Agreement;
16.1.5 the Schedules to this Services Agreement shall be incorporated into and deemed part of this Services Agreement and all references to this Services Agreement shall also include the Schedules to this Services Agreement;
16.1.6 any reference to a Clause or a Schedule shall be to such Clause or Schedule of this Services Agreement, unless otherwise expressly provided;
16.1.7 any reference to time and/or date in this Services Agreement shall be to the time and/or date in Singapore;
16.1.8 unless expressly indicated otherwise, any reference to a number of days refers to calendar days;
16.1.9 unless expressly indicated otherwise, any currency amount mentioned in this Services Agreement refers to such amounts in Singapore Dollars;
16.1.10 a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by‑laws, codes, judgment, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, extended, consolidated, re-enacted or replaced and includes all subordinate laws and regulations made under it from time to time;
16.1.11 a reference to a document includes all amendments or supplements to that document, or replacements or novation of it;
16.1.12 unless expressly indicated otherwise, any confirmation, consent, direction, request or notice to be given under this Services Agreement shall be given in writing;
16.1.13 where the provision number is stated without a description of any document then it refers to the provision so numbered in the document where the reference appears; and
16.1.14 the terms and conditions or any part thereof in this Services Agreement may not be construed adversely against a Party just because that Party drafted it.