Updated at: 28 February 2023
Please read these service terms and conditions carefully. These terms (“Terms”) describe the general and specific terms and conditions applicable to your purchase, use and access of the products, websites and services listed at the end of these Terms here (the “Services”) offered or made available by us, BizAdvisor Digital Sdn Bhd (“BizAdvisor Digital”).
This document is a legally binding agreement between you as the purchaser, customer and/or user of the Services and BizAdvisor Digital. You will be deemed to have full knowledge of, accept and be legally bound by these Terms when you have received an invoice from BizAdvisor Digital for the provision of any of the Services (the “Invoice”) and made your first payment of the Service Fee.
1. Definitions
In these Terms:
1.1 “Access Right” has the meaning given to it in Clause 18.1(b).
1.2 “Ads Spend” means any part of direct cost with an aggregate limit as set out in the duly accepted budget allocation / investment plan, which we may spend to purchase any online advertising media on your behalf to be used to perform the search engine marketing services and the social media advertising services during the Contract Period, exclusive of any tax.
1.3 “Agreement” means these Terms and the Invoice.
1.4 “Background Intellectual Property” means all intellectual property rights that is either (i) in existence prior to the Start Date of this Agreement; or (ii) is produced, designed, developed or acquired by or for us outside the scope of this Agreement.
1.5 “Contract Period” has the meaning given to it in Clause 2.1 .
1.6 “Invoice” means the invoice we issued to you for the provision of any of the Services, the details of which you are deemed to have agreed and accepted.
1.7 “End Date” means the expiry date of this Agreement as set out in the Invoice for the provision of the Services, subject to termination in accordance with this Agreement.
1.8 “Partners” means our business partners and suppliers for the provision of Services.
1.9 “Services” means the covered services listed in Clause 18.
1.10 “Service Fee” means the fees paid by you to us as specified in the Invoice.
1.11 “Software” means software application system and computer applications and programmes together with the computer program, firmware, routine, algorithm, code, instruction, script, schematics, macro, application programming or other interface, database, tool, document display definition, object library or software tool, or other instruction or set of instructions for hardware or other software to follow, whether in source code or object code and whether expressed in any or all languages including embedded program and human interfaces, SQL and other query languages, hypertext mark-up language and other computer mark-up languages and together with all upgrades, enhancements, modifications and derivations together with the right to exploit the same in any media or format.
1.12 “Start Date” means the effective date of this Agreement as set out in the Invoice for the provision of the Services, subject to termination in accordance with this Agreement.
1.13 “Terms” means the most recent version of the terms and conditions as displayed on our website at Services Agreement – BizAdvisor Digital at the time of your contribution or commission, as may be amended or varied by us from time to time.
1.14 “Third Party Applications and Services” means products, services, websites, links, content, material, games, skills, integrations, bots or applications acquired from or accessed through independent third parties.
1.15 “Third Party Software” has the meaning given to it in Clause 18.1(f).
1.16 “We/our/us” means BizAdvisor Digital Sdn Bhd.
1.17 “You/your” means you, our customer, who/which may be an individual, a partnership, a firm or a company.
1.18 “Your Content” means any content communicated by you to us and/or our Partners via the Services, including any files, data, text, photographs, visuals, documents, audio, digital works, livestreams and videos that you upload, store, broadcast or share through the Services.
2. Duration of Agreement and Termination
2.1 This Agreement commences on the Start Date and continues until the End Date, unless earlier terminated in accordance with this Agreement (the “Contract Period”).
2.2 We may terminate this Agreement upon giving you 14 days’ written notice if the Software and/or Services is no longer available for us to provide access to you for any reason.
2.3 You may terminate this Agreement for convenience by giving us 14 days’ written notice. In this event, you are not entitled to any refund for any prepaid Service Fee as at the date of termination of this Agreement. If you have any outstanding Service Fee payable to us for the remainder of the Contract Period, you agree to pay such outstanding Service Fee to us within 30 days from the date of termination of this Agreement.
2.4 We may terminate this Agreement without prior notice if you:
a) materially breach this Agreement; or
b) engage in conduct which in our reasonable opinion damages our brand or brings us into disrepute.
2.5 Upon termination of this Agreement: (i) you are not entitled to any refund for any prepaid Service Fee as at the date of termination of this Agreement; (ii) if you have any outstanding Service Fee payable to us for the remainder of the Contract Period, you agree to pay such outstanding Service Fee to us within 30 days from the date of termination of this Agreement; and (iii) you must immediately cease to use or access the Services. We and our Partners reserve the right to disable and/or limit your access to the Services and any portions thereof, including but not limited to your account, email account and Your Content. In addition, after a period of time, our Partners may delete information and data stored in or as a part of your account(s). Any individual components of the Services that you may have used subject to separate software licence agreements will also be terminated in accordance with those licence agreements.
3. Privacy
Your use of the Services is subject to our Privacy Policy, which is available at Privacy Policy – BizAdvisor Digital.
4. Your Content
4.1 Many of our Services allow you to store and share Your Content or receive materials from others. We do not claim ownership of Your Content. Your Content remains yours and you are solely responsible for it.
a) When you share Your Content with other people, you understand that they may be able to, on a worldwide basis, use, save, record, reproduce, broadcast, transmit, share and display Your Content for the purpose that you made Your Content available on the Services, without compensating you. If you do not want others to have that ability, do not use the Services to share Your Content. You represent and warrant that for the duration of this Agreement, you have (and will have) all the rights necessary for Your Content that is uploaded, stored or shared on or through the Services and that the collection, use and retention of Your Content will not violate any law or rights of others. We and/or our Partner(s) do not own, control, verify, pay for, endorse or otherwise assume any liability for Your Content and cannot be held responsible for Your Content or the material other third parties upload, store or share using the Services.
b) To the extent necessary to provide the Services to you and others, to protect you and the Services, and to improve the Services, you grant to us and our relevant Partner(s) a worldwide and royalty-free intellectual property licence to use Your Content, including but not limited to make copies of, retain, transmit, reformat, display and distribute via communication tools Your Content on the Services.
5. Limitations on Use
5.1 You agree to use the Services only for purposes permitted by this Agreement, and only to the extent permitted by any applicable law, regulation, or generally accepted practice in the applicable jurisdiction.
5.2 If your use of the Services or other behaviour directly or indirectly threatens our and/or our Partner(s)’ ability to provide the Services or other systems, we are entitled to take all reasonable steps to protect the Services and the Software, which may include suspension of your access to the Services.
6. Using Third Party Applications and Services
6.1 The Services may allow you to access or acquire Third Party Applications and Services.
6.2 Many of our Services may also help you find, make requests to, or interact with Third Party Applications and Services or allow you to share Your Content, and you understand that by using our Services you are directing them to make Third Party Applications and Services available to you.
6.3 The Third Party Applications and Services may also allow you to store Your Content with the publisher, provider or operator of the Third Party Applications and Services. The Third Party Applications and Services may present you with a privacy policy or require you to accept their terms before you can install or use the Third Party Applications and Services. You should review the third-party terms and privacy policies before acquiring, using, requesting, or linking your account to any Third Party Applications and Services.
6.4 You agree to assume all risk and liability arising from your use of these Third Party Applications and Services and that we and our Partners are not responsible for any issues arising out of your use of them. We are not: (a) responsible to provide any technical support for all of the Third Party Applications and Services; and (b) responsible or liable to you or others for information or services provided by any Third Party Applications and Services.
7. Technical Support
7.1 We may, either directly or through our Partners and/or our Partners’ licensors, provide technical support relating to your Services. We may refuse any and all requests for technical support with or without reason, in our sole discretion. Any technical support that we may subsequently agree to provide to you is at our sole discretion and once commenced, may be terminated at any time by us without prior notice to you and without any liability to us.
7.2 We do not provide technical support for the third party software. The third party software is offered “as-is”. The provision and offering of third party software by us does not constitute an endorsement of the third party software, nor can we make any representations or warranties regarding the use and functionality of such third party software.
8. Subcontracting
We may subcontract and/or outsource the Services or any parts thereof without obtaining your approval, or giving notice to you.
9. Service Standards and Dependencies
You acknowledge and agree that our ability to provide the Services is dependent on your full and timely cooperation, and the accuracy and completeness of any information, documents or content required (and requested by us) from time to time for the delivery of the Services. Without adequate information or documents, you acknowledge that we may not be able to provide the Services in a timely manner and in accordance with the specification requested. You acknowledge and agree that you will not hold us liable for any delay, non-performance or failure to execute or deliver the Services in the event that you fail to provide the requested information or document required for the performance of the Services.
10. Updates to the Services or Software, and Changes to these Terms
10.1 We reserve the right to change and modify these Terms and to impose new or additional terms or conditions on your use of the Services at any time without notice to you by publishing the new terms and conditions on this page at Services Agreement – BizAdvisor Digital. If you continue using the Services or accept any Services from us after the changes become effective, it constitutes your acceptance of those new terms and conditions. If you object to any new terms or conditions, you may terminate this Agreement by giving us 14 days’ written notice.
10.2 There may be times when we need to remove or change features or functionality of the Services or stop providing a Service or access to Third Party Applications and Services altogether. Except to the extent required by applicable law, we have no obligation to provide a re-download or replacement of any material or applications that you have previously purchased.
11. Payment Terms
11.1 You agree to pay the Service Fee to us in accordance with the payment terms (including the mode of payment and timeframe) as specified in the Invoice. The Service Fee excludes all applicable taxes, unless stated otherwise. You are solely responsible for paying such taxes or other charges.
11.2 The time for payment of Service Fee under this Agreement is of essence. All amounts which are not paid by you to us within the stipulated timeframe stated in the Invoice will bear interests until they are finally paid, at the rate of 1.5% per month.
11.3 We may temporarily suspend or permanently cancel and cease providing the Services if we do not receive payment from you within the stipulated timeframe stated in the Invoice.
12. Reservation of Intellectual Property Rights
12.1 We retain and own all right, title and interest in and to our Background Intellectual Property, and you acknowledge that you have no claim of any nature in and to our Background Intellectual Property that is proprietary to us.
12.2 We further retain and own any and all intellectual property rights in respect of the Services not expressly assigned or licensed to you in this Agreement. Except as expressly provided in this Agreement, no other assignments or licences of intellectual property rights are granted whatsoever, whether expressly or by implication or by estoppel, by any party. All intellectual property rights in respect of the Services are owned by us, our Partners and/or our Partners’ licensors, unless expressly assigned or transferred to you in this Agreement.
13. Security
13.1 You acknowledge and agree that we will not be liable for any unauthorised access to and the security of:
a) Your Content;
b) your Facebook, YouTube, Instagram or LinkedIn administrative account or webpage;
c) your Google Ads Manager, Facebook Ads Manager, Google Analytics, Google Tag Manager or your customer management system (CMS) administrative account;
d) your any other account as the situation may require or your backend management system such as WordPress;
e) your website administrative account;
f) your website (even when the access occurs as a result of a fault in equipment or software owned, operated or supplied by us); or
g) your data on any of your equipment or passing over the Services.
13.2 We have no obligation to ensure, and make no representation or warranty concerning the security of such data or such administrative account or webpage or website. You are solely responsible for the data retrieved, stored or transmitted through the Services.
13.3 You are responsible for properly configuring and using the Services and taking the necessary steps to maintain appropriate security and protection of:
a) Your Content;
b) your Facebook, YouTube, Instagram or LinkedIn administrative account or webpage;
c) your Google Ads Manager, Facebook Ads Manager, Google Analytics, Google Tag Manager, your customer management system (CMS) administrative account;
d) your any other account as the situation may require or your backend management system such as WordPress;
e) your website administrative account; or
f) your website,
which may include the use of encryption technology to protect that content and account from unauthorized access and make routine archiving of that content.
14. Warranties
14.1 BIZADVISOR DIGITAL, AND OUR AFFILIATES, PARTNERS, AND SUPPLIERS, MAKE NO WARRANTIES, EXPRESS OR IMPLIED, GUARANTEES OR CONDITIONS WITH RESPECT TO YOUR USE OF THE SERVICES. YOU UNDERSTAND THAT USE OF THE SERVICES IS AT YOUR OWN RISK AND THAT WE PROVIDE THE SERVICES ON AN “AS IS” BASIS “WITH ALL FAULTS” AND “AS AVAILABLE”. WE DO NOT GUARANTEE THE ACCURACY OR TIMELINESS OF THE SERVICES. YOU ACKNOWLEDGE THAT COMPUTER AND TELECOMMUNICATION SYSTEMS ARE NOT FAULT-FREE AND OCCASIONAL PERIODS OF DOWNTIME OCCUR. WE DO NOT GUARANTEE THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT CONTENT LOSS WILL NOT OCCUR, NOR DO WE GUARANTEE ANY CONNECTION TO OR TRANSMISSION FROM COMPUTER NETWORKS.
14.2 TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ANY IMPLIED WARRANTIES, INCLUDING FOR MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT AND NON-INFRINGEMENT.
14.3 WE DO NOT REPRESENT OR GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO.
14.4 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE, COMPUTER, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
15. Limitation of Liability
EXCEPT AS AND TO THE EXTENT THAT IT IS HEREINBEFORE PROVIDED AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL WE OR OUR PARTNERS, DIRECTORS, EMPLOYEES AND AGENTS BE LIABLE FOR: (I) ANY LOSS, DAMAGE OR INJURY ARISING FROM THE ACCESS TO OR USE OF THE SERVICES OR ANY FAILURE BY US OR OUR PARTNERS TO PERFORM ANY OBLIGATION OR OBSERVE ANY TERMS OF THIS AGREEMENT; OR (II) ANY DIRECT, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSS, DAMAGE OR INJURY, INCLUDING ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF DATA, LOSS OF TIME, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS REPUTATION OR FUTURE REPUTATION, LOSS OF PRODUCTION AND LOSS OF OR DAMAGE TO GOODWILL.
16. Indemnity
You agree to indemnify us and our Partners, directors, employees and agents and keep us and our Partners, directors, employees and agents indemnified from and against all actions, claims, damages, costs and expenses (including legal costs on a solicitor and own client basis) that arise directly or indirectly out of: (i) the malicious or negligent access to or use of the Services by you or your directors, officers, agents, employees or contractors; (ii) any intentional or reckless breach of this Agreement by you; or (iii) the wilful, illegal, negligent or fraudulent act, error or omission of you or your directors, officers, agents, employees or contractors.
17. General
17.1 Governing Law: This Agreement will be governed by and construed in accordance with the laws of Malaysia. Each party submits to the exclusive jurisdiction of the Courts of Malaysia and waives any right it has to object to an action being brought in the Courts of Malaysia (including that the action has been brought in an inconvenient forum, or that those Courts do not have jurisdiction).
17.2 Reservation of Rights: We reserve all rights not specifically and expressly granted to you in this Agreement.
17.3 Confidentiality: The parties agree to each treat as strictly confidential and not disclose or use any information received or obtained as a result of entering into this Agreement, except where: (i) the disclosure or use is required by law; (ii) the disclosure or use is required to vest the full benefit of this Agreement in either Party; (iii) the disclosure or use is required for the purpose of any judicial proceedings arising out of this Agreement or to any regulatory body in connection with the tax affairs of the disclosing party; (iv) the information is or becomes publicly available (other than by breach of this Agreement); or (v) the other party has given prior written approval to the disclosure or use of the information.
17.4 Independent Contractor: The parties acknowledge that in providing the Services, we are acting in the capacity of an independent contractor and not as your employee or agent.
17.5 Assignment: This Agreement and your rights and obligations under this Agreement may be assigned or transferred by us, in whole or in part in our sole discretion.
17.6 Waiver: No delay or failure by either party to enforce any provision of this Agreement will be deemed a waiver or create a precedent or will prejudice its rights. No waiver by either party will be effective unless it is in writing and signed.
17.7 Severance: If any term of this Agreement is void, unenforceable or illegal, that term is severed. The remainder of this Agreement has full force and effect.
17.8 No Modification: A variation of this Agreement is not effective unless it is in writing and signed by the parties.
17.9 Force Majeure: In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence, provided that the affected party: (i) provides the other party prompt notice of the nature and expected duration of the event; (ii) uses commercially reasonable efforts to address and mitigate the cause and effect of such event; (iii) provides periodic notice of relevant developments; and (iv) provides prompt notice of the end of such event.
17.10 Entire Agreement: This Agreement constitutes the entire agreement between the parties with regard to its subject matter, and it supersedes all other agreements, proposals and representations between the parties.
18. Service-Specific Terms
Without limiting the generality of the general service terms (i.e. Clauses 1 to 17) above, you further agree and undertake that the purchase and use of the Services identified hereunder is subject to the additional specific terms and conditions set forth hereunder. These service-specific terms govern if there are any conflicts with the general terms.
18.1 Cloud-Based Services
This sub-clause 18.1 is applicable to you if you purchase any of the Services listed in Clauses 19.1 and 19.3 (d) and (e).
a) Ownership of the Software: You acknowledge and agree that the Software and all right, title and interest in and to the Software are owned exclusively by us, our Partners and/or our Partners’ licensors.
b) Access to Software: Subject to this Agreement, we grant to you, and you hereby accept, a non-exclusive right to access and use the Software in Malaysia throughout the term of this Agreement, in accordance with any access right specified in the Invoice (“Access Right”). [You may allow the Software to be used by your affiliates in which you hold a majority shareholding, provided that you have obtained our prior written consent to such use.] You agree to use the Software only as authorised in this Agreement. This Agreement does not convey to you any ownership rights or any other interest in the Software.
c) Restrictions: You must not: (i) copy or make any changes or modifications to the Software; (ii) translate, de-compile, disassemble or otherwise reverse engineer the Software; (iii) loan, rent, lease, sub-license, or provide access to the Software or any copy to others for any purpose; (iv) use the Software in any way that could (a) infringe our rights or the rights of our Partners, our Partners’ licensors and any third party, including intellectual property rights and privacy rights; or (b) damage our reputation or the reputation of our Partners, our Partners’ licensors, or the goodwill or other rights associated with the Software; (v) make any attempt to circumvent the technological measure(s) that control access to the Software; (vi) remove or obscure any of the patent, copyright, trademark, or proprietary rights notices belonging to us, our Partners or our Partners’ licensors contained in or affixed to the Software; (vii) unbundle individual or component parts of the Software for independent use; or (viii) incorporate any portion of the Software into a product or service that competes with the Software.
d) Your Responsibility: You are solely responsible for your own computer systems, and must ensure that you take precautions in respect of your use of the Services in accordance with this Agreement. We will not be liable for any interference with or damage to your computer systems arising out of or in connection with the use of the Services. You must use all reasonable efforts to protect the Software from unauthorised use, access, modification, reproduction, distribution or publication. You must not make any uses or copies of the Software that are not specifically authorised by the terms of this Agreement, and we reserve all rights that are not expressly granted to you.
e) No Guarantee: You agree that we are unable to guarantee the results or effectiveness of the Services rendered or to be rendered by us. We will use our best efforts in providing the Services, but we do not guarantee or promise any results to you.
f) Third Party Software: If you purchase any software from any person to be used in conjunction, connection or association with the Services for any reason, including to add functionality to the performance of the Software (“Third Party Software”), we will not be liable for any damage or loss that occurs to the Services or your computer system, Software or data. Your use of any Third Party Software is governed by the respective Third Party Software agreements and/or terms and conditions including but not limited to each Third Party Software’s licence terms.
g) Separate Agreement for Cloud-Based Services: You acknowledge and accept that certain cloud-based services provided by us, our Partners and/or our Partners’ licensors require you (as the end user) to enter into a separate agreement with the relevant Partner and/or the relevant Partner’s licensor (the “Separate Agreement”). You further agree to execute and be bound by the Separate Agreement provided by the relevant Partner and/or the relevant Partner’s licensor.
18.2 Digital Marketing Services
This sub-clause 18.2 is applicable to you if you purchase any of the Services listed in Clause 19.2.
a) Change in Scope of Work: We strive to provide excellent customer service, and encourage input from you during the design process. However, if you request significant changes (in our sole opinion) to the agreed scope of work as specified in the Invoice, we are entitled to charge you additional fees.
b) Login Access and Content Required: You must within 3 days from our written request provide and make available to us any information (including but not limited to administrative account login access, passwords and any information as required in any job sheet provided by us) and content required (including but not limited to any text, article, photo, graphic, video, content, design, logo, trademark, website image or other artwork) in order to perform the Services and authorize our use of the same information or content for the purpose of performing the Services. You must not hold us liable for any delay or failure to execute or deliver the Services in the event that you fail to provide the information or content to our satisfaction in accordance with this clause. You guarantee that the information and content provided to us under this clause are owned by you, or you have obtained permission from the rightful owner to use that information or content. You agree to hold us harmless, protect and defend us from any claim or suit arising from the use of such information or content furnished by you.
c) Grant of Further Permission and Access: For the sole purpose of performing the Services, you further grant us permission or access as follows: (i) administrative access to your website, your customer service management software (CMS) account, your Google Ads Manager, Facebook Ads Manager, Google Tag Manager, website traffic statistical tools for your website, your Google Analytics and/or Social Media account or webpage, as the case may be, and your any other account as the situation may require; (ii) permission to communicate with third parties, including but not limited to your web designer and your web developer; (iii) permission to use your official email in order to request for hyperlink; (iv) permission to make changes to your social media account or webpage (for the sole purpose of performing social media advertising services only); and (v) permission to setup your social media account or webpage on your behalf (for the sole purpose of performing social media advertising services only). For the avoidance of doubt, any delay or failure in the performance of the Services attributable to the delay or failure on your part in fulfilling your obligation under this clause will not be deemed to be a breach under this Agreement.
d) [Third Party Terms of Service: You agree that you have read, understood and will comply with Facebook Terms of Service in https://www.facebook.com/legal/terms, LinkedIn User Agreement in https://www.linkedin.com/legal/user-agreement, Instagram Terms of Use in https://help.instagram.com/581066165581870, Twitter Terms of Service in https://twitter.com/en/tos, YouTube Terms of Service in https://www.youtube.com/static?template=terms and/or iStock content license agreement in https://www.istockphoto.com/my/legal/license-agreement (as the case may be) as part of your business relationship with us. In the event any terms and conditions are inconsistent with these terms of service, the provision of these terms of service shall prevail.]
e) Ads Spend: For the sole purpose of performing the search engine marketing services and the social media advertising services under this Agreement, you allow us to (i) decide how we will use Ads Spend; and (ii) increase the Ads Spend. You will be invoiced for any additional direct cost exceeding the aggregate limit of Ads Spend which we may spend to purchase any online advertising media on your behalf to be used to perform the search engine marketing services and the social media advertising services over the term of this Agreement and you are required to make the payment of that additional direct cost in accordance with this Agreement. In the event of early termination of this Agreement, any unutilised Ads Spend paid will be utilised within one (1) year, failing which we reserve the right to not refund that unutilised Ads Spend. Any tax arising from the Ads Spend will be payable by you.
f) Payment of Ads Spend: You hereby authorise us to use your designated credit card to pay for any part of the Ads Spend during the Contract Period of this Agreement for the sole purpose of providing the search engine marketing services and the social media advertising services. If any part of the Ads Spend cannot be paid from your designated credit card, our inability to perform the search engine marketing services and the social media advertising services shall not constitute a breach under this Agreement.
g) Copyrights and Trademarks: You represent to us and unconditionally guarantee that any elements of text, graphics, photos, designs, audios, videos, trademarks or other artwork furnished to us via email, phone, internet, on-paper, in-meeting and otherwise, for the inclusion in your website are owned by you, or that you have permission from the rightful owner to use each of these elements. You will hold harmless, protect, and defend us from any claim or suit arising from the use of such elements furnished by you. You agree that any content used while developing the website is owned by you and under no circumstances will we be liable for Your Content or the content of any third party, including but not limited to any errors or omissions in Your Content, or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted or otherwise. We will not be liable for any copyright or trademark infringements.
h) Third Party Modifications: You may wish to independently edit or update your Services after completion of the design and/or development as a way to control costs and avoid further expense. You agree that once we complete the development for your Services, and subsequently any party other than us attempts to update the Services and such update results in damage to the design and/or impairs the ability for the Services to display or function property, we will not be liable for such damage.
i) Assignment of Development: We reserve the right to assign certain subcontractors to this development to ensure the right fit for the job as well as on-time completion. We warrant all work completed by our subcontractors for this development.
j) Additional Expenses: You agree to reimburse us for any additional out-of-pocket expenses we incur at your request for the completion of the development, including but not limited to the purchase of specific fonts, graphics, photography, audio, video, forms, software, third party plugins and third party online portals.
k) No Guarantee: You agree that we are unable to guarantee the results or effectiveness of the Services rendered or to be rendered by us. We will use our best efforts in providing the Services, but we do not guarantee or promise any results to you.
l) Abuse: You agree to work together and deal with us in a professional manner. Any kind of repeated pattern of inappropriate, false accusations, harassment, derogatory or threatening speech directed towards us, our officers, employees, and contractors will not be tolerated. In such events, we reserve the right to take strict action and halt the development process and any related Services immediately without any refund to you.
m) [Design Credit and Reviews: You agree that we may put a by-line on the bottom of your website to establish design and development credit. You also agree that the website, graphics, video, audio and any development created for you will be included in our portfolio and you will provide us with a text review, audio or video testimonial when requested by us.]
n) Disclaimer: In respect of any social media advertising services, we assume no responsibility or liability for any error, cost, loss, disclosure of or related to any content or other information, or data not being transferred to or published on any of your social media webpage or account, or if any incident occurs as a result of malfunction in a transfer facility. The social media advertising services provided to you is strictly on an “as-is” basis. We disclaim any and all express, implied and statutory warranties applicable to your website or the social media advertising services, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, and any warranties arising out of conduct or trade practice. You are aware that the social media provider may make material changes to their websites and services as the social media comprised of third-party platforms. Unless otherwise agreed, you are responsible to monitor, manage and respond to all messages and comments on your social media page.
18.3 Web and Mobile Application Development
This sub-clause 18.3 is applicable to you if you purchase any of the Services listed in Clause 19.2 (e) and (g).
a) Domain Registration: At your request, we may secure a domain name on your behalf. All charges incurred in doing so will be billed to you as an additional fee. If you wish to secure a specific domain name that is already owned by another party, then you must provide us with an alternative domain name to be registered. If you already have a domain name, we may coordinate the redirecting of the address to a new hosting server.
b) Standard Hosting Services: At your request, we may order an account with a host provider on your behalf or you may order the account independently. If you choose to order an account with a host provider through us, you agree to pay all necessary hosting fees before ordering.
c) Cross-Browser Compatibility: Our agreement contemplates the creation of a website viewable by [Microsoft Internet Explorer 10 and Google Chrome]. “Compatibility” is defined herein as all critical elements of each page being viewable in both browsers. You are aware that some advanced techniques on the Internet, however, may require a more recent browser version and brand or plug-in. You are also aware that as and when new browser versions of Internet Explorer and Chrome are developed, the new browser versions may not be backward compatible. At your request, our charges and time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated.
d) Search Engine Registration: Upon final payment of development and at your request, we will optimize your World Wide Web site with appropriate titles, keywords, descriptions, and text and thereafter submit your World Wide Web to free search engines and directories.
e) Website Design Services: You agree that we may use open source platforms [such as WordPress CMS] and third party applications to build website and will not be held liable for any faults, loopholes, vulnerabilities, hack, spam or any other problem arising due to mismatch, upgrading error with different versions of the Content Management System (CMS), plugins and applications. You also agree and understand that problems arising due to third party hosting, servers, domain provider or any technical reason or by the act-of-god is not our fault and therefore agree to hold harmless, protect, and defend us and our subcontractors from any claim or lawsuits.
f) No Guarantee: You agree that we are unable to guarantee the results or effectiveness of the Services rendered or to be rendered by us. We will use our best efforts in providing the Services, but we do not guarantee or promise any results to you.
g) Ownership of Intellectual Property Rights: Copyright to the finished assembled work product developed by us for you will vest in you upon your final payment for the development.
h) Search Engine Ranking: We do not provide any warranty or guarantee for search engine ranking. The page rank depends on various different factors such as your website content relevancy, page popularity, authentic backlinks, domain age, blogging consistency, social media presence, and niche. If you are looking for a guarantee over the page rank, you should subscribe to our Search Engine Optimization (SEO) services.
18.4 Search Engine Optimization (SEO)
This sub-clause 18.4 is applicable to you if you purchase the Services listed in Clause 19.2 (e).
a) Definition: SEO is also known as Search Engine Optimization or organic SEO, which refers to the methods used to obtain a high placement or ranking on a search engine results page in unpaid, algorithm-driven results on a given search engine.
b) Keywords: We will work with all keywords and/or keyword phrases provided by you and make every effort possible to bring the keyword and/or keywords phrases to the top of major search engines such as Google. However, you acknowledge and understand that organic SEO programs cannot guarantee specific keywords and/or keyword phrases in certain search engines. Instead, our guarantee only covers keyword and/or keyword phrase rankings related to your website product and/or services.
c) Service Level Agreement (SLA) for SEO Service: Subject to the terms and conditions of this Clause 18.4 and depending on the SEO package you subscribe to, we will exercise our best effort to ensure that at least forty percent (40%) of the Keywords for each of your website will be ranked on the first page of Google search result within six (months) from the Start Date, failing which we will continue to provide the SEO service to you for another additional 3 months until the guaranteed results are met. For the avoidance of doubt, keywords guarantee on the first page is not applicable for business and health services in Malaysia. Guaranteed results are only applicable for Malaysia customers only.
d) Non-applicability of SLA for SEO Service: The SLA is not applicable in the following circumstances: (i) if your website is offline due to no fault of us; and (ii) if your website is modified by any other party other than us that adversely affect Google search organic ranking or directory rankings of your website, as determined by us.
e) Termination of SLA for SEO Service: The SLA shall be immediately terminated in the following events: (i) you, your employee, agent or any other person acting under your instruction overrides our modification of your website; (ii) service of notice of termination by you or us; or (iii) if the SEO service is suspended pursuant to the terms and conditions set out in this Agreement.
f) SEO Guarantee: You understand and agree that the Google search engine is a third party website that we have no control over and our Services are only confined to optimizing your website with the best possible method and keywords. Our guarantee for the first page or the first five-page depends on the amount of competition in your niche, keyword saturation, search engine algorithms, domain age, server response time and many other technical factors.
g) [SEO Performance Refunds: In the case where your web URL is not found on the first 5 pages of Google, NO REFUNDS will be made before 12 months because a usual organic optimization takes at least 12 months to show results. Indexing and ranking in search engines are subject to server uptime, server settings, DNS settings, website coding and/or optimized content remaining intact. These inconsistencies can be corrected but will delay indexing and ranking. We will evaluate the results thoroughly before issuing any refunds.]
h) Over-writing and re-installs: It is your responsibility to ensure optimized and/or installed content remains intact. If updating / editing the website from copies on your PC, you will need to download and use optimized files prepared for your assignment. Publishing changes without updating your local files will erase optimized content. Re-installation charges may apply if we are required to re-install over-written optimized content.
i) Google (maps): Positioning (ranking) cannot be guaranteed in Google Local (maps). The optimization is confined to your website and keywords, and does not include Google Maps or Google Places.
j) No Guarantee: You agree that we are unable to guarantee the results or effectiveness of the Services rendered or to be rendered by us. We will use our best efforts in providing the Services, but we do not guarantee or promise any results to you.
k) Monthly SEO Services: You agree to let us update and maintain our website on a monthly basis. You understand, agree and authorize us to make changes to the programming, HTML, PHP, CSS, JQuery, coding, database, feeds, server settings, configurations, DNS, MX, SEO keywords, locations, XML, plugins, widgets, applications, podcast and security settings, backup, content and all the other technical and non-technical features necessary to improve the overall exposure and performance of the website.
l) [Monthly Maintenance Guarantee: You understand and agree that web maintenance is done on an open-source content management system such as WordPress, third-party plugin, interface that is saved on a third-party hosting server. Failure or success of such updates depends on a number of factors such as server response time, server bandwidth, internet connection, version compatibility with other plugins, widgets, by act of God. You agree to hold us harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorney’s fees.]
m) Monthly Paid Subscription Cancellation Policy: If you wish to cancel the monthly SEO services, you must notify us at least fourteen (14) days before the cancellation date via email/mail. In the event that updates are postponed or cancelled at your request by email, we will have the right to retain 50% of the original payment as maintenance expenses. In the event this amount is not sufficient to cover our time and expense already incurred and invested in the maintenance, we will charge you additional fees.
n) Disclaimer: The SEO services provided to you is strictly on an “as-is” basis. We disclaim any and all express, implied and statutory warranties applicable to your website or the SEO services, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, and any warranties arising out of conduct or trade practice. We have no control over the policy of search engine with respect to the type of site and/or content that they accept now or in the future. Your website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory. We will not assume any liability for ranking, traffic or indexing issue relating to “Google Sandbox” penalty including but not limited to search engine hindering the rankings of new website or webpage until that new website or webpage has proven its ability to exist for more than 6 months. We will not assume liability for your choice to link to or obtain a hyperlink from any website without prior consultation with us.
18.5 Accounting and Finance Services
This sub-clause 18.5 is applicable to you if you purchase any of the Services listed in Clause 19.3.
a) Provision of Services: We will provide you with the specific accounting and finance services as described in the Invoice. We will act in good faith and not do any act, matter or thing that may prejudicially affect your interests. We will also comply with your lawful, proper and reasonable directions, and provide you with all correspondence, information and data relating to the provision of the Services as shall reasonably be requested by you.
b) Your Responsibility for the Provision of Information: You agree and undertake to make available to us, as and when required, all financial information necessary for our provision of the Services under this Agreement, including but not limited to accounting records, invoices and any other related documents and information. You will provide us with all information and explanations relevant to the purpose and accounting and finance services, and you will disclose to us all relevant information in full. You guarantee that all financial information provided to us are accurate, complete and up-to-date. You acknowledge that we shall be entitled to rely upon the accuracy of the financial information provided by you, without independently verifying it. You also agree to provide all cooperation required to the proper and timely performance of the Services. If you do not, after being asked by us, provide us with the necessary financial information, or provide us with incomplete or incorrect information, we may make an additional charge of a reasonable sum to cover any extra work that is required, or suspend the Services by giving you a written notice. We will not be liable for any delay or non-performance of the Services in the event you have not provided us with the information requested by us.
c) Your Conduct of Business: You are responsible for ensuring that the activities of your business are conducted honestly, and for safeguarding the assets of the business and for taking reasonable steps to prevent and detect fraud and other irregularities. You are also responsible for ensuring that your business complies with the laws and regulations that apply to your activities, and for preventing non-compliance.
d) Payroll Service Responsibilities: You will make available to us, as and when required, all payroll data, information, materials and documentation necessary for our provision of the payroll services as part of the accounting and finance services described in the Invoice, including but not limited to account information or any other information pertaining to your employee in a form acceptable to us for the performance of the Services. You acknowledge that we shall be entitled to rely upon the accuracy of the payroll data and information provided by you, without independently verifying it. You also acknowledge that we will not be responsible for any errors that result from the reliance of the payroll information provided by you. You acknowledge that we may, in the course of providing the payroll services gain access to your employee’s confidential information. We agree to hold all such confidential information in strict confidence and shall not without your prior written permission (i) disclose such confidential information to third parties or (ii) use such confidential information for any purposes whatsoever, other than for the performance of our obligations hereunder.
e) Our Responsibilities: We will advise you on whether your records are adequate for preparation of the financial reports and recommend improvements. If you are a subscriber to our outsourced CFO package, you will also have access to a dedicated outsourced CFO who will provide you with financial insights and recommendations based on your business data and financial statements to assist you in amongst others, preparing for pitches with potential investors. We have a professional duty to compile financial reports that conform with generally accepted accounting principles and standards from the accounting records, information and explanations given to us. We also have a professional responsibility not to allow our name to be associated with financial information and/or accounts which we believe may be misleading. Therefore, although we are not required or obligated to search for such matters, in the event we become aware, for any reason, that the financial reports may be misleading, we may discuss the matter with you with a view to agreeing appropriate adjustments and/or disclosures in the financial reports. In such event, we reserve the right to withdraw from the engagement immediately at our sole discretion by giving you a written notice.
f) Exercise of Independent Judgment: You acknowledge that as part of our performance of the Services, we may provide you with recommendations to improve your cash flow management, to streamline your finance operation etc. In this regard, you agree that you will exercise your independent judgment in any and all decision making process irrespective of our recommendations. We will not be liable to you or your affiliates for any loss, liability, damage or expense arising out of or in connection with your reliance on our advice provided pursuant to the performance of Services under this Agreement.
g) No Guarantee: You agree that we are unable to guarantee the results or effectiveness of the Services rendered or to be rendered by us. We will use our best efforts in providing the Services, but we do not guarantee or promise any results to you.
h) Advisor Liability: Except for gross negligence or malfeasance, or violation of applicable law, neither we nor any of our Partners, principals, employees or agents shall be liable hereunder or otherwise for any action performed or omitted to be performed or for any errors of judgment in performing services under this Agreement.
i) Lien: We reserve the right to exercise a lien over all funds, documents and records in our possession relating to the Services for you until all outstanding Service Fee is paid in full.
j) Intellectual Property Rights: We will retain all copyright in any document prepared by us during the course of carrying out the Services save where the law specifically provides otherwise.
k) Limitation of Third Party Rights: The advice and information we provide to you as part of the Services is for your sole use and not for any third party to whom you may communicate it unless we have expressly agreed in writing that a specified third party may rely on our work. We accept no responsibility to third parties, for any advice, information or material produced as part of our work for you which you may make available to them.
l) Disclaimer: You understand that acknowledge that we compile the financial reports solely based on the information and explanations provided by you. Consequently, the accuracy and completeness of the financial reports is reliant on the accuracy, completeness and format of the information you provide to us, as well as the time and cost to complete the Services. We are not responsible for ensuring that the activities of your business are conducted honestly. Our scope of Services do not include conducting audit and review, and procedures to detect fraud and other irregularities.
18.6 Business Financing Services
This sub-clause 18.6 is applicable to you if you purchase any of the Services listed in Clause 19.4.
a) Business Financing Services: We will provide you with the specific business financing services as described in the Invoice.
b) Exclusions: You acknowledge and understand that we do not provide tax, investment and insurance advice and services. If any such issues arise, you should consult with an attorney, a qualified tax professional and other relevant professionals, as the case may be. Any additional expenses or costs incurred as a result of your consultation with an external professional will be borne by you. For the avoidance of doubt, our Service Fee is not inclusive of these additional expenses or costs.
c) Acknowledgement: You understand, acknowledge and agree that we do not, and will not: (i) take a deposit; (ii) take capital risk; (iii) take a side in a lending agreement; (iv) engage in activities regulated under the Capital Markets and Services Act 2007 (or that Act as amended from time to time); (v) provide credit rating services; or (vi) provide custodial services. You further understand, acknowledge and agree that our role is merely administrative and mechanical in nature in arranging for you to enter into a facility with or obtain funds or loans from finance providers, investors, venture capitals or potential funders and as such we are not regulated by laws regulating the business of and do not carry out any activities within the ambit of or relating to money lending, financing business and the taking of deposits in the course of carrying on a deposit-taking business. We do not, and will not assume any advisory, fiduciary or similar other duties or act as an investment adviser to you. You agree that you have taken, or will take, the necessary independent legal, tax, financial or other advice before we provide the Services to you.
d) Use of the Services: Upon your execution of the consent form to us and Credit Bureau Malaysia Sdn Bhd or any other authorised credit bureau service provider or agency, you irrevocably and unconditionally consent to us to conduct necessary background screening, due diligence checks and credit checks and verifications on you and/or your related parties, including directors, partners, shareholders, beneficial owners, guarantors and/or authorised signatories. Accordingly, you hereby agree that we may contact any relevant authorities, private companies, credit reporting agencies, and/or individuals to ascertain, verify and confirm relevant information about you and/or your related parties, including but not limited to information on, your legal, trade or credit history, as long as you have business relationship and/or outstanding balance with us.
e) Your Responsibility for the Provision of Information: You agree and undertake to make available to us, as and when required, all information and documents necessary for our provision of the Services under this Agreement, including but not limited to corporate documents, company directors and shareholders identity documents, management accounts, bank statements, financial statements, debtors and creditors aging reports, business plans and any other related documentation and information. You will provide us with all information, documents, and explanations relevant to the purposes and business financing services, and you will disclose to us all information in full. You guarantee that all information provided to us are accurate, complete and up-to-date. You also agree to provide all cooperation required for the proper and timely performance of the Services. If you do not, after being asked by us, provide us with the necessary information and documents, or provide us with incomplete or inaccurate information, we may make an additional charge of a reasonable sum to cover any extra work that is required, or suspend the Services by giving you a written notice. We will not be liable for any delay, failure or non-performance of the Services in the event you fail to provide us with adequate and complete information or documents as requested by us.
f) No Guarantee: You agree that we are unable to guarantee the results or effectiveness of the Services rendered or to be rendered by us. We will use our best efforts in providing the Services, but we do not guarantee or promise any results to you.
g) Advisor Liability: Except for gross negligence or malfeasance, or violation of applicable law, neither we nor any of our Partners, principals, employees or agents shall be liable hereunder or otherwise for any action performed or omitted to be performed or for any errors of judgment in performing services under this Agreement. You acknowledge and agree that we will not be held liable or responsible for all agreements you enter into with any financial institutions or P2P financing platforms, equity crowdfunding (ECF) platforms, angel investors, government grants or venture capital. You also acknowledge and agree that we will not be held liable or responsible in the event that we do not manage to obtain the funds you require, or in the event that the required funds are not raised or approved by finance providers.
h) Reliance on Advice: We will endeavour to record all advice on important matters in writing. Any advice given orally is not intended to be relied upon unless confirmed in writing. Therefore, if we provide oral advice (whether during the course of a meeting, a telephone conversation or otherwise) and you wish to be able to rely on that advice, you must ask for the advice to be confirmed by us in writing.
i) Limitation of Third Party Rights: The advice and information we provide to you as part of the Services is for your sole use and not for any third party to whom you may communicate it unless we have expressly agreed in writing and/or in the Invoice that a specified third party may rely on our work. We accept no responsibility to third parties, for any advice, information or material produced as part of our work for you which you may make available to them.
j) Professional fee charge: You agree and acknowledge that we are entitled to charge a one (1) time professional fee of a certain percentage based on the loan quantum or funding approved or disbursed to you, as further described in the Invoice. This professional fee shall be payable upon your acceptance of the letter of offer for the loan approval or funding, in accordance with the payment terms described in the Invoice. You also agree and acknowledge that in the event you decide not to accept the letter of offer for the loan approval or the funding, we are entitled to charge you a professional fee for our time spent leading up to the grant of the loan or funding.
k) Additional fee charge: You agree and understand that we are entitled to charge additional fees for additional services which may be required by you from time to time such as in relation to the preparation of management accounts, development of business plan, pitch deck, business valuation report and preparation of financial projections.
19. Covered Services
19.1 Digital Business Transformation, including but not limited to:
19.2 Digital Marketing, including but not limited to:
19.3 Accounting and Finance, including but not limited to:
19.4 Business Financing, including but not limited to:
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