(updated on 14th May 2019)
TERMS AND CONDITIONS
1. JaGaApp Platform
1.1 JaGaApp Community Platform
Subject to the terms and conditions of this Agreement, RISB hereby grants the Committee the right to use the JaGaApp Platform to establish a private residential community platform at the Property for all residents or related persons residing or domiciled at the Property who have downloaded the JaGaApp, including any software or application (whether such software or application is designed to be accessed via mobile devices, the Internet or by other means) that is provided or offered by RISB as part of the JaGaApp Platform (each an “End User”).
1.2 End User License Agreement
Each End User must agree to and accept the End User License Agreement (“EULA”) of the JaGaApp, which will be shown to the End User on his or her mobile device before he or she is allowed to use and access the application and JaGaApp Platform.
1.3 No Obligation to Verify
RISB shall have no obligation and/or responsibility to verify, confirm or inspect any information provided by the Committee to RISB pursuant to this Agreement, if any, for the use of the JaGaApp Platform, whether in form or substance. The Committee shall be responsible for ensuring that all information provided to RISB under this Agreement for the setup of the JaGaApp Platform at the Property is complete, accurate, not misleading and up-to-date as of the Effective Date.
1.4 Acceptable Use
RISB may with seven (7) days’ notice in its sole discretion and pending its investigation, temporarily suspend the Committee’s use of the JaGaApp Platform due to any misuse of the JaGaApp Platform by the Committee or its affiliates and/or agents, including but not limited to, any security company employed at the Property (including its employees, officers, subcontractors and/or agents), or End Users. Examples of possible misuse includes, but is not limited to, the following:
(a) intentional tampering of and/or damage caused to any JaGaApp Guard Device deployed or made available at the Property;
(b) intentional and/or unnecessary activation of the emergency assist function by an End User in excess of the allocated monthly emergency activation limit, which may compromise the security at the Property by depriving other End Users with genuine and legitimate emergencies from using the emergency assist; and attempting to reverse engineer, decompile, disassemble, or otherwise derive or discover the source code, algorithms, processes, know-how, or other information of the JaGaApp Platform or any portion of it, including the disassembly or attempted disassembly of a JaGaApp Guard Device to inspect its circuitry, technical specifications and layout, and other related technical information.
1.5 RISB Responsibilities
RISB shall use commercially reasonable efforts to provide the Committee with access and availability of the JaGaApp Platform including the following:
(a) to supply, deliver, install, test and commission the JaGaApp Platform comprising the relevant JaGaApp Guard Devices at the Property;.
(b) to provide comprehensive and adequate on-site training for the residents of the Property, Committee and security guards, as the case may be, together with the necessary written operational manuals;
(c) to promptly notify the Committee and all End Users of any planned or unscheduled downtime which may include updates, improvements and emergency maintenance performed on the JaGaApp Platform.
For the avoidance of doubt and subject to Clause 10.7, RISB shall not be responsible for any unavailability or inaccessibility of the JaGaApp Platform at the Property that may arises from or caused by circumstances beyond RISB’s control including any of the following:
(i) interruption or failure of the Internet or other means of data transmission over telecommunication facilities or network, and/or
(ii) third party service providers, used to render the JaGaApp Platform.
1.6 Committee Responsibilities
The Committee agrees to perform the following obligations with respect to the use of the JaGaApp Platform at the Property:
(a) ensure that the JaGaApp Guard Devices provided to the Committee for its use at the Property remain sufficiently powered/charged and in good working condition at all times to enable the security guards to respond promptly to activations of the emergency assist by End Users;
(b) ensure that the security company employed at the Property has and maintains a valid license from the Ministry of Home Affairs under the Private Agency Act 1971.
The Committee acknowledges and agrees that RISB shall not be responsible or liable for any losses, damages or liabilities that may arise from or is caused by (i) any failure or delay of the security guards at the Property to respond to an emergency situation at the Property including activations of the emergency assist by End Users; and (ii) any violation or contravention of this Clause 1.6 by the Committee.
3. Fees for JaGaApp Platform
In consideration of RISB allowing the Committee to set up and use the JaGaApp Platform at the Property, the Committee shall pay to RISB the agreed fees and charges detailed in Schedule 1 of this Agreement.
4.1 Confidentiality Obligations
Each Party acknowledges that the information it receives from the other Party is confidential, proprietary and may be a valuable commercial asset.
4.2 Non-Use of Confidential Information
Both Parties agree to keep the above-mentioned information and data that they receive from the other Party in strict confidence and to not disclose any of it to a third party or use it for its own benefit without the prior consent of the other Party in writing. RISB may only disclose such confidential information or data to its employees, agents or affiliates, who require the information to enable RISB to fulfil its contractual obligations to the Committee under this Agreement.
5. Committee Data
5.1 Data Privacy
The Parties agree to comply with all applicable laws and regulations concerning the protection of personal data including the provisions of the Personal Data Protection Act 2010 of Malaysia.
5.2 Committee Data
During the subsistence of this Agreement, RISB shall be permitted to use any data provided by the Committee pursuant to this Agreement for the purposes of rendering the JaGaApp Platform and/or JaGaApp (“Committee Data”) to the Committee and End Users at the Property.
5.3 Analytics of JaGaApp Platform
RISB shall have the right to collect and analyse data and other information relating to the provision, use and performance of the JaGaApp Platform by the Committee and/or End Users for analytics and internal business development purposes. RISB reserves the right during the Term of this Agreement:
(a) to use such information and data to improve and enhance the JaGaApp Platform and/or JaGaApp and for further development, diagnostic and corrective purposes in connection with the JaGaApp Platform and/or JaGaApp; and/or
(b) to disclose such data and information solely in an aggregated and/or de-identified form in connection with its business but subject to the consent of the Committee.
For the avoidance of doubt, all analytics and related use of data under this Clause 5.3 will only be performed using de-identified data, which will not be able to identify any specific individual person or entity.
5.4 License by Committee
The Committee hereby grants to RISB, a non-exclusive, non-transferable and non-sublicensable right and license to use, copy, transmit, modify and display the Committee Data solely for the Committee and End User’s use of the JaGaApp Platform at the Property, for example, to display the contact information of Committee members for the convenience of End Users. RISB shall not use the Committee Data except to perform its obligations under this Agreement.
6. Term and Termination
This Agreement shall commence on the Effective Date for the period specified in the Agreement as the Initial Term, and will automatically renew for additional twelve (12) month periods unless either Party gives the other written notice of termination at least ninety (90) days prior to the expiration of the current Term.
Each Party shall have the right to immediately terminate this Agreement:
(a) upon mutual agreement of the Parties in writing;
(b) upon Notice to the other Party specifying a breach of a material term of this Agreement by the other Party and where such breach shall continue for a period of ninety (90) days after the receipt of such Notice;
(c) if the other Party is unable to perform any of its obligations under this Agreement after giving the other Party prior notification of such non-performance;
(d) if the other Party ceases or threatens to cease carrying on its business or its operations;
(e) if the other Party, its creditors or any other eligible party files for its liquidation, bankruptcy, reorganization, composition, or dissolution;
(f) if the other Party is unable to pay any kind of debt or meet any financial obligation as it becomes due; or
(g) if that Party, being RISB, reasonably apprehends or anticipates that any event in this Clause 6.2 is about to occur in relation to the Committee after giving reasonable notification to the Committee.
6.3 Effect of Termination
Upon the termination or expiry of this Agreement:
(a) the rights granted by RISB to the Committee under this Agreement shall immediately terminate and RISB may suspend the Committee’s use of the JaGaApp Platform at the Property and/or End Users’ use of JaGaApp;
(b) RISB shall relinquish ownership of and return to the Committee, all Committee Data provided to RISB in relation to the use of the JaGaApp Platform to the Committee within a reasonable period of time. RISB shall only be obligated to return personal data collected to the Committee. RISB has provided an export function within the JaGaApp Platform for the Committee to access and export all other non-personal data and information if it wishes to retrieve such information; and
(c) RISB shall, after thirty (30) days from the termination of this Agreement, erase, destroy, and render unreadable all Committee Data from its systems and the JaGaApp Platform.
For the avoidance of doubt, any obligation that is intended to have effect after termination of this Agreement shall so continue.
7. Limitation of Liability
IN NO EVENT SHALL RISB, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS AND/OR AGENTS, BE LIABLE TO THE COMMITTEE OR TO ANY OF ITS AFFILIATES, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION TO, ANY LOSS OF USE, DATA, BUSINESS, GOODWILL, REPUTATION, REVENUE, OR PROFITS) ARISING OUT OF OR IN ANY WAY RELATED WITH THIS AGREEMENT, OR THE USE, OPERATION OR PERFORMANCE OF THE JAGAAPP PLATFORM BY THE COMMITTEE IN ANY WAY WHATSOEVER (WHETHER SUCH RELATED SERVICES ARE PRESENTLY EXISTING OR DEVELOPED AFTER THE EXECUTION OF THIS AGREEMENT), WHETHER SUCH DAMAGES OR LIABILITIES ARISE FROM ANY CLAIM MADE BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE). NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL THE LIABLITY FOR DAMAGES UNDER THIS AGREEMENT OF RISB, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS AND/OR AGENTS, EXCEED ALL FEES AND COSTS PAID BY THE COMMITTEE TO RISB UNDER THIS AGREEMENT FOR (1) ONE YEAR.
8. Indemnification by Committee
The Parties acknowledge and agree that RISB shall not be responsible for any commercial or legal liability that may arise as a result of the Committee’s use of the JaGaApp Platform at the Property, and shall defend, indemnify and hold RISB, its affiliates, directors, officers, employees, contractors and/or agents, harmless from and against any suits, claims, proceedings, judgments, awards, damages, losses and/or liabilities, that are incurred or suffered by RISB, its affiliates, directors, officers, employees, contractors and/or agents from such use by the Committee, as the case may be, unless such liability, losses and/or damages are caused by the negligence and wilful misconduct of RISB.
9.1 How Notices May Be Given
Any notice, consent, approval, request or demand (each a “Notice”) permitted or required under this Agreement must: (a) be in writing; (b) be signed for a Party giving it by an authorised representative of the Party; and (c) may be delivered personally to the contact person designated in this Agreement to whom it is addressed, or left at or sent by prepaid registered post to the person’s address, or faxed/emailed to the person, given below:
if to RISB:
Address: Unit 606, Block G, Pusat Dagangan Phileo Damansara 1,
Jalan 16/11, Seksyen 16, 46350 Petaling Jaya, Selangor, Malaysia.
Fax: +603 7931 9955
10.1 Entire agreement
This Agreement including any annexes, schedules, addendums or exhibits, constitutes the entire agreement and understanding between the Parties with respect to all matters dealt with in this Agreement and supersedes any other agreement, arrangement or understanding (whether written or oral, or express or implied) entered into prior to this Agreement with respect to any provision or matter dealt with in this Agreement.
The Parties may not amend, alter, modify, vary or supplement this Agreement, except with the express approval of both Parties in writing and signed by an authorised representative of each Party.
Any approval or consent sought by a Party to this Agreement shall only be effective if communicated in accordance with Section 9 of this Agreement, and such approval or consent given by a Party to the other Party requesting it, shall not be deemed to waive or render unnecessary the first Party’s approval or consent for any subsequent similar acts by the other Party.
The Parties agree that no failure, omission, or delay on the part of any Party in the exercise of any right under this Agreement shall operate as a waiver of such right. The waiver by either Party of any breach of any provision of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other provisions in this Agreement. Any waivers made by a Party must be in writing and signed by authorised representatives of both Parties.
The invalidity or unenforceability of any provision of this Agreement under any applicable law or court order shall not affect the validity or enforceability of the remaining provisions, which shall remain in full force and effect.
Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party in writing. Any attempted assignment to the contrary shall be rendered void. RISB may assign this Agreement without the consent of the Committee to an affiliate or a related third party that acquires a substantial portion of the assets or business of RISB.
10.7 Force Majeure
No Party will be liable to the other Party for any loss, damage or liability resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused by a circumstance beyond its reasonable control, including, without limitation to, domain name server issues outside its direct control, labour strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, political interferences, labour conditions, industrial disputes, earthquakes, communications or power failure, lost or unavailable network connections, failed, incomplete or delayed computer transmissions, material shortages or any other related cause. The inability to meet any financial obligation is expressly excluded under this Clause 10.7.
10.8 Dispute Resolution
The Parties agree to settle any dispute expediently on an amicable basis and through negotiations in good faith. If any dispute remains unresolved after a period of sixty (60) days of such dispute, then either Party may seek legal recourse and/or seek to enforce their rights and remedies in the Courts of Malaysia.
10.9 Governing Law
Subject to the provisions of Clause 10.08, this Agreement shall be governed by and construed in accordance with the laws of Malaysia.
11. Representation and Warranties
Each Party represents, warrants and covenants to the other Party that:
it has the full right, power and authority, whether corporate, pursuant to any applicable law or otherwise, to execute, deliver and perform this Agreement, and to consummate any transaction contemplated in it;
it owns or controls the necessary rights in order to make the grants of rights, licenses and permissions under this Agreement, and that the exercise of such rights shall not infringe on the rights of any third party;
it shall not act in any manner which conflicts or interferes with any existing commitment or obligation, and that no agreement previously entered into by such Party will interfere with its performance of its obligations under this Agreement; and
(d) Compliance with Laws
it shall perform its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
The Parties agree that the JaGaApp Platform is provided on an “as is” and “as available” basis and without representations, warranties and/or conditions of any kind in relation to the JaGaApp Platform. Although RISB uses commercially reasonable efforts to provide the Committee with availability and accessibility of the JaGaApp Platform, RISB does not guarantee that (a) the JaGaApp Platform will be performed error-free or uninterrupted, (b) that any JaGaApp Platform related errors with be corrected in any specified timeline, or (c) the JaGaApp Platform will meet the Committee’s requirements, specifications or expectations in all respects. Further, the Committee acknowledges and agrees that RISB does not control the transfer of data over communications facilities or networks, including the Internet, mobile networks or other means of data transmission, and the JaGaApp Platform may be subject to limitations, delays, interruptions and other problems inherent in the use of such communications facilities. The availability of the JaGaApp Platform may also be dependent on third party service providers used to render the JaGaApp Platform to the Committee, which RISB has no control over, and the operation, maintenance and availability of such third party services are governed, as the case may be, by their respective terms of service(s).