1.1 By signing or accepting the JaGaSolution Community Service Form (in the manner as we have determined), you are deemed to acknowledge and agree to be bound by all these terms and conditions (“General Terms”) which are applicable to you. These terms and conditions apply to all the services subscribed by you (unless otherwise prescribed in the Service Form and/or schedule), and together with the applicable Service Form and Schedules shall form a legally binding agreement (“Agreement”) between you and Red Ideas Sdn Bhd (“RISB”).
1.2 RISB may amend the terms in the Agreement at any time. Such amendments shall be effective once they are posted on https://jagasolution.com/jagasolution-community-agreement/ or the Application. It is your responsibility to review the General Terms regularly. Your continued use of the Service after any such amendments, whether or not reviewed by you, shall constitute your agreement to be bound by such amendments.
1.3 RISB is a technology company which distributes a community mobile platform called the JaGaSolution Platform which offers a set of communication, security, workflow management, accountancy system and convenience tools known as JaGaApp, JaGaApp 2.0, JaGaCount, JaGaRonda, JaGaWork, JaGaCard and HeyJaGa (“JaGa Product”) that are accessible by the Customer and the residents of a community through subscription of the JaGa Product.
1.4 RISB also provides a platform for Users to obtain the services provided by third party providers and RISB’s role is merely to link the Users with the third-party providers. RISB shall not in any way responsible or liable for the act and/or omissions of any third party provider and the liability in relation to such services shall be the third party’s providers sole responsibility.
2.1 The following words and phrases have the prescribed meanings, unless the context otherwise requires, and shall apply to the General Terms and each of the Service Forms and Schedules.
• “Affiliate” means either a subsidiary of the parent company of Red Ideas Holding Berhad (“Red Ideas”), a subsidiary of such a subsidiary, another subsidiary of the parent company of Red Ideas or an associate company of such subsidiary, a subsidiary or associate of Red Ideas;
• “Agreement” means the Service Form, the applicable Schedule, the General Terms and the applicable additional terms in Section B for JaGaCount Customer.
• “Application” means the relevant mobile application(s) made available for download by RISB (or its licensors) to Users and third-party providers respectively.
• “Customer”, “you” or “your” means the customer whose particulars or details are identified in the section referred to as either “Applicant Information”, “Customer Information” or “Committee Details” in our Service Form, online subscription portal or sign-up application;
• “Device” means the relevant device provided by RISB to you, namely, the “JaGa Product Guard Device”, “JaGa Product 2D Barcode Scanner, and/or “JaGa Product POS”;
• “Force Majeure Event” means:
(i) rebellion, civil unrest, riot, acts of terrorism, declaration of war, national emergencies, national disasters, strikes, lock-outs, fire, explosion, acts of God, adverse inclement weather, lightning-strikes, natural disasters, earthquakes, epidemics, pandemics, lock down or movement control orders by the government, damage to or destruction of RISB’s network, including interference to or compromise of RISB’s network caused by third party actions, occurrence of a major power disruption, commercial power failure, disruption of interconnected communications facilities or networks, acts by Government, regulatory bodies, national councils, local authorities or other appropriate authorities or any other event which is beyond the reasonable control of RISB; and
(ii) which materially affects the provision of the Service;
• “JaGa Product” means the following communication, security, workflow management, accountancy system and convenience tools which are made available by RISB through the Service, namely: JaGaApp, JaGaApp 2.0, JaGaCount, JaGaRonda, JaGaWork, JaGaCard, HeyJaGa and any such other services which RISB may make available from time to time;
• “Personal Data” means any information which can be used to identify you or from which you are identifiable or the Users. This includes but is not limited to your name, nationality, telephone number, bank and credit card details, email address, your image, government-issued identification numbers, biometric data, race and date of birth;
• “Platform” means the relevant RISB or JaGaSolution technology platform or Golive, portal or website that, when used in conjunction with the Application, enables you and Users to access the services which are made available to you and Users by RISB or JaGaSolution technology platform or Golive from time to time;
• “Property” means the property as described in the applicable Service Form and Schedule;
• “SIM Card” means a microchip that connects it to a particular phone network in the Device;
• “SST” means Sales and Services Tax as provided under the Service Tax Act 2018;
• “User” means any person who uses JaGa Product, the Application, Platform, and/or Software;
• “Schedule” means the applicable Schedule as indicated or identified in the Service Form or electronic order for the applicable Service subscribed;
• “Service” means the service subscribed by the Customer as specified in the Service Form or electronic order;
• “Software” means any software associated with the Application which is made available for download and installed by RISB;
• “Term” means the aggregate of the Initial Term, the Renewed Service Term and/or the period ending on the date of termination of the Service (as the case may be).
• Singular words include the plural and vice versa;
• Headings used in the General Terms, Service Schedules or the Schedule are for convenience only, and are to be ignored when construing the provisions of this Agreement;
• If you subscribe for different Services and each Service is either subject to its applicable Service Schedule or subject to different terms within the same applicable Schedule. For the avoidance of doubt, each Service and its applicable Service Schedule or the terms within the applicable Service Schedule (as the case may be) are to be construed as an independent agreement between the Parties;
• To the extent that the provisions of the General Terms, the Service Form and a Schedule are inconsistent, to the extent possible such provisions will be interpreted so as to make them consistent, and if that is not possible, then the Service Form shall prevail over the applicable Service Schedule and the General Terms, the applicable Schedule shall prevail over the General Terms;
• Reference to “Applicable Law” in this General Terms or in any Schedule, is a reference to any applicable constitution, law, by-law, statute, ordinance, code, rule, regulation, order, judgment or decree of any government, state or political subdivision thereof, courts, regulatory or semi-regulatory or administrative body;
• References to any statute, rule, regulation, order, directive shall be construed as references to such statute, rule, regulation, order or directive as may be amended, re-enacted or as modified by any other statute, rule, regulation, order or directive;
• Reference to a document includes all amendments, supplements to, or replacements of, that document whether paper or electronic/digital, and reference to a “person” includes any individual person, firm, company, corporation, government state or agency of a state or any association, trust or partnership (whether or not having a separate legal personality);
• The words “Ringgit Malaysia” and the symbol “RM” shall be construed as the lawful currency of Malaysia.
4. THE SERVICE
4.1 RISB agrees to provide the Service that you have subscribed as specified and defined in the Service Form and the applicable Schedule.
4.2 Unless otherwise expressly agreed in writing or as specified in or modified by the applicable Schedule, these General Terms shall govern all the rights and obligations of the Parties.
5. PROVISION OF SERVICES
5.1 Preconditions to Provisioning
After the Service Form is accepted by RISB and the Customer has paid the required Charges that may be imposed pursuant to or specified in the Service Form or the Schedule and invoiced by RISB, RISB shall, subject to the terms in the applicable Service Form and Schedule, carry out the works to provision the Service by the Service Commencement Date (“SCD”) stated in the Service Form and perform the requisite services, subject to Clause 5.3 below.
5.2 Service Acceptance
The Customer shall render all assistance and co-operation required by RISB to facilitate the Service Acceptance (“SA”). Upon completion of the provisioning works in respect of a Service, RISB shall carry out the SA for each Service subscribed. Once the SA is satisfactorily completed, RISB shall provide the SA Form that (i) certifies that the Service is ready for Customer’s use, (ii) specifies the commission or activation date, and (iii) such other relevant particulars to the Customer. You are to sign and return the SA Form to RISB or indicate your acceptance of the SA no later than 3 working days of its receipt, failing which you are deemed to be satisfied with the SA and accept the Service and the SCD of the Service is deemed to be the commission or activation date as specified in the SA Form.
5.3 Service Commencement Date Revision
RISB may revise SCD if the original SCD cannot be met due to circumstances beyond RISB’s control, RISB experiencing delays in performing its works or if you delay or do not perform your obligations as specified in the Service Form and/or applicable Schedule. The applicable Schedule may specify additional grounds for the revision of the SCD whether by RISB or by you.
6. CUSTOMER AND/OR USER’S RIGHT TO USE THE SERVICE
(a) Unless otherwise expressly agreed in writing or as specified in the applicable Schedule, the Customer and/or User may only use the Service in accordance with Applicable Law and for their intended use and lawful purpose only, and is neither permitted to sell, resell, hire, lease (including sub lease), licence (including sub-licence), rent, offer, provide or sub-provision the Service, or any portion thereto whether for consideration or otherwise to any third party nor use the Service for any fraudulent, unlawful, illegal or improper purpose or in breach of any applicable laws and regulations, including tampering, altering, adjusting, removing, diverting, abusing or affecting the Service.
(b) the Customer shall ensure that the Device provided by RISB for the Service shall be used and maintained properly in its ordinary use. The Customer agrees to assume full responsibility and liability for all the losses, failure, non-functionality or damages caused to the Device in its possession.
(c) The Customer also agrees that RISB shall not be held responsible and/or liable for any damage to the Device and/or any interruption or suspension caused to the Service due to the fault of the Customer and/or its affiliates, employees, officers, subcontractors and/or agents.
(d) The Customer further represent and warrant to RISB that:
(i) the Customer shall at all times ensure that there shall not be any intentional tampering of and/or damage caused to the Device at the Property;
(ii) the Customer shall ensure that there shall not be any intentional tampering of the Device including but not limited to: removing the SIM Card from the Device or abuse on the use of the SIM Card; or
(iii) the Customer shall also prevent any abuse in the use of the emergency assist function by their User which may compromise the security at the Property by depriving other User with genuine and legitimate emergencies from accessing the emergency assist function.
6.2 In the event there is any breach or non-compliance of the terms in Clause 6.1 above, the Customer acknowledge and agree that RISB shall not be responsible for any losses, damages or liabilities that may arise due to the Customer and/or User’s fault. The Customer agrees to assume full responsibility and liability for all the losses, costs, or expenses arising in connection with or related to the Device or JaGa Products.
6.3 JaGa Product Administrator and/or Moderator
If the Customer wishes to add any of its employees, officers and/or agents as a JaGa Product administrator and/or moderator, the Customer shall notify RISB officially in writing via email for such request.
6.4 Service Modifications
• Unless otherwise specified in the applicable Schedule, no alteration or modification of the Service, at any time during the Initial Term, which reduces or downgrades the Service is permitted.
• If the Customer requires any upgrade to the subscribed Service, which includes subscription of additional services provided by RISB, RISB will provide a fee quote to the Customer, and if the Customer agrees, the Customer shall complete and execute a new Service Form. If the additional service is dependent on the continuation of the existing Services being subscribed by Customer, then the Initial Term of existing Services shall be extended by the difference between the original Initial Term and the period the additional service is to be provided calculated by reference to the SCD of the existing Service and that of the additional service. Such extension of the Initial Term is not a renewal but is an increase of the Initial Service Term. A change will restart the Initial Service Term from the new SCD.
7. CHARGES, INVOICING & PAYMENT
(a) Unless otherwise specified in the applicable Service Form or Schedule, the charges may include a registration fee, monthly charges and/or recurring charges (“Charges”)which are as indicated and detailed in the Service Form, and is non-refundable. All Charges exclude applicable SST, or prevailing service taxes (as may be imposed by law from time to time). If any withholding tax is applicable to a Customer making payment to RISB for the Service, then the Customer shall gross up the Charges such that RISB receives the full Charges net of withholding tax.
(b) If the Customer has opted for SIM Card to be used in the Device, the charges for using the SIM Card shall be RM120.00 per month.
(c) With respect to clause 7.1(b) above, if the Customer (including its affiliate, agent, employees, officers, security company and/ or subcontractors) is found to abuse or misuse the SIM Card provided by RISB, RISB shall charge the additional amount incurred by RISB to the Customer. The Customer shall be solely responsible for the additional amount incurred to the usage of the SIM Card.
• RISB shall issue a tax invoice to the Customer for the Charges and the Customer shall pay and continue to pay the Charges by the due date stated in the invoices.
• Notwithstanding anything to the contrary, the Customer acknowledges and agrees that its obligation to pay all Charges due and payable shall not be waived, absolved or diminished by virtue of its failure or neglect to check, enquire, understand and ascertain the nature of Services subscribed or used by the Customer and the applicable charges associated with such Services, and you further acknowledge that it shall be your responsibility to request from RISB the invoices it has not received for any given billing period. If the Customer fails to pay the invoice by its due date, RISB may impose a late payment charge for such unpaid invoices at the rate of 5% per annum calculated from the due date until full settlement. It is the Customer’s responsibility to request for invoices from RISB that it has not received. The Customer shall be responsible for all reasonable costs incurred by RISB in the collection of any overdue amount.
7.3 Invoice Dispute
Unless otherwise specified in the applicable Service Schedule, all bona fide disputes concerning an invoice are to be raised in writing by Customer within 7 days of the date in the invoice identified as “statement date”, and shall specify the amount disputed, the reasons for disputing the amount and provide documentary records supporting the reasons. The Customer shall pay all amounts in an invoice which are not in dispute by the due date. Upon receipt of the dispute, RISB shall promptly investigate the dispute, and either issue a revised invoice if the dispute is justified or not. If a revised invoice is issued, Customer shall pay the revised invoice within 14 days. If a revised invoice is not issued, Parties shall promptly resolve the dispute in good faith.
8.1 You shall maintain in confidence all information and data relating to RISB, its services, products, business affairs, marketing and promotion plans or other operations and its associated companies which are disclosed to you or on behalf of RISB (whether orally or in writing and whether before, on or after the date of this Agreement) or which are otherwise directly or indirectly acquired by you from RISB, or any of its affiliate companies, or created in the course of this Agreement. You shall further ensure that you only use such confidential information in order to use the Service, and shall not without RISB’s prior written consent, disclose such information to any third party nor use it for any other purpose.
8.2 The above obligations of confidentiality shall not apply to the extent that you can show that the relevant information:
• was at the time of receipt already in your possession;
• is, or becomes in the future, public knowledge through no fault or omission on your part;
• was received from a third party having the right to disclose it; or
• is required to be disclosed by law and/or authorities.
9. DATA PRIVACY
9.3 You acknowledge that RISB may disclose Personal Data of other individuals to you in the course of your use of RISB’s Services. You represent and warrant that you will only use such Personal Data for the purpose for which it was disclosed to you by RISB, and not for any other unauthorized purposes.
10. INTELLECTUAL PROPERTY RIGHT
10.1 RISB and its licensors, where applicable, shall own all right, title and interest, including all related intellectual property rights, in and to JaGa Product, the Software and/or the Application and by extension, the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service.
10.2 The General Terms do not constitute a sale agreement and do not convey to you any rights of ownership in or related to JaGa Product, the Service, the Software and/or the Application, or any intellectual property rights owned by RISB and/or its licensors. The name, logo, the Service, the Software and/or the Application and the product names associated with the Software and/or the Application are trademarks of RISB or third parties, and no right or license is granted to use them. For the avoidance of doubt, the term the Software and the Application herein shall include its respective components, processes and design in its entirety.
11. LICENSE GRANT AND RESTRICTIONS
11.1 RISB and its licensors, where applicable, grant you a revocable, non-exclusive, non- transferable, limited license to use and access JaGa Product, the Application and/or the Software to use the Service, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by RISB and its licensors.
11.2 You shall not:
• license, sublicense, sell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application and/or the Software and/or JaGa Product in any way;
• modify or make derivative works based on JaGa Product, the Application and/or the Software;
• mirror the Application/Software on any other server or wireless or internet-based device;
• except to the extent such restriction is prohibited under applicable law, disassemble, decompile, reverse engineer, decrypt or attempt to derive and code or extract software from, this Application or any software or services made available on or through the Application;
• use any manual or automated program or script, including but not limited to web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, to unduly burden or hinder the operation and/or performance of the Application, to conduct data mining or scraping activities, or in any way reproduce or circumvent the navigational structure or presentation of the Application or its content;
• post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights;
• remove any copyright, trademark or other proprietary rights notices contained on the Application or Platform;
• use the Application to interfere with or disrupt the integrity or performance of the Application or the data contained therein;
• attempt to gain unauthorized access to the Application or its related software, systems or networks;
• impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; or
• engage in any conduct that could possibly damage our reputation or amount to being disreputable.
12. THIRD PARTY INTERACTIONS
12.1 During use of the Service, you may enter into correspondence or transactions with third parties who display or offer their goods and/or service through JaGa Product or the Platform or Application.
12.2 Any such communication or agreement is strictly between you and the applicable third party, and RISB and its licensors shall have no liability or obligation for any such communication or agreement.
12.5 RISB may rely on third party advertising and marketing supplied through the Service and other mechanisms to subsidize the Service and/or to earn additional revenue. You agree to receive such advertising and marketing.
12.6 You agree and allow RISB to compile and release information regarding you and your use of the Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take all precautions in all actions and interactions with any third party you interact with through the Service and/or advertising or marketing material supplied by third parties through the Service.
12.7 We may include hyperlinks to other websites or content on the Internet that are owned or operated by third parties (“Third Party Links“). Such Third Party Links are not under our control and we are not liable for any errors, omissions, delays, defamation, libel, slander, falsehood, obscenity, pornography, profanity, inaccuracy or any other objectionable material contained in the content, or the consequences of accessing, any linked website. Any hyperlinks to any other websites or content are not an endorsement or verification of such websites or content and you agree that your access to or use of such linked websites or content is entirely at your own risk.
13. INTERRUPTION OF SERVICE
13.1 RISB does not warrant or guarantee that the Service shall be error free or uninterrupted. RISB shall not be responsible for any unavailability or inaccessibility of the Service that may arises from or due to circumstance(s) which is beyond RISB’s control. The Service may be interrupted due to:
• Technical difficulties or operational issues;
• Interruption or failure of the internet or other means of data transmission over the network or facilities;
• Device used by you being faulty, not connected, switched off or not functioning;
• An occurrence of a Force Majeure Event; or
• An act of third parties.
13.2 In the event that you discovered that there is an interruption of the Service, it is your duty to notify RISB of such interruption of the Service. RISB shall use its best endeavour to restore the affected Services as soon as reasonably practicable upon the notification of the interruption of the Service.
14. RISB’S RIGHT TO SUSPEND THE SERVICE
14.1 RISB shall have the right to suspend the Service by giving written or verbal prior notice to the Customer in the following situation:
• If the Charges or for any Service(s) subscribe invoices remains unpaid or outstanding;
• Breach of Clause 6 of the General Terms;
• An occurrence of a Force Majeure Event;
• Interruption of the Service as stated in Clause 7 of the General Terms;
• Your use of the Service is not in compliance with the Applicable Law; and
• Any order or direction from an authority for RISB to do so.
14.2 RISB may reconnect a suspended Service once the event ceases.
14.3 If the reconnection of the suspended Service is due to the Customer’s fault, RISB may impose a reconnection fee in the sum of RM500 per man day / as specified in the Service Form.
14.4 Notwithstanding Clause 11 and 12.1 above, you shall remain liable to pay all the applicable Charges to RISB during the interruption, suspension or loss of Service(s) or any part thereof.
15.1 The Customer agrees that the Services is for the initial term specified in the Service Form (or in the applicable Schedule) which starts from the SCD (“Initial Term”).
15.2 The Customer also agrees that the Service subscribed shall automatically be renewed annually (“Renewed Service Term”), unless the Customer has given written notice to RISB of its intention to terminate the Service in accordance to Clause 16 of this General Terms.
16.1 Termination by the Customer
The Customer may either:
• terminate the Service or the Agreement immediately, if:
(i) RISB is in breach of its obligations herein and/or under the Service Form and/or Schedule; and
(ii) the Customer has issued a notice requiring RISB to remedy the same within 30 days and that RISB has failed, neglected or refused to do so;
• terminate the Service upon the completion of the Initial Term by giving at least 14 days prior written notice before the expiry of the Initial Term, otherwise, the Service subscribed shall deemed to be renewed automatically as stated in Clause 15.2 above; or
• terminate the Service by giving 90 days prior written notice during the Renewed Service Term only.
16.2 Termination for Convenience
If the Customer wishes to terminate the Agreement before the expiry of the Initial Term, then the Customer shall notify RISB in writing 30 days before the date of such termination. A penalty fees shall be imposed on the Customer if the Service is cancelled before the Initial Term. The cancellation fees shall be equivalent to the remaining period of the Initial Term, and if applicable, the subsidy, discount and/or promotion the Customer benefitted during the Initial Term.
16.3 Termination by either Part
Either Party may terminate this Agreement immediately in writing if:
• an order is made or an effective resolution is passed for the winding up, dissolution or bankruptcy of the other Party, or for the reconstruction and amalgamation of the other Party otherwise under any Applicable Law;
• a receiver, receiver and manager, judicial manager, provisional liquidator, liquidator, trustee in bankruptcy or like official is appointed over the whole or substantially the whole of the undertaking of the other Party;
• the other Party shall make any arrangement for the benefit of or enter into any arrangement or composition agreement with its creditors;
• a holder of an encumbrance takes possession of the whole or substantially the whole of the property of the other Party;
• execution is levied against the assets or undertaking of the other Party; and a claim may be made accordingly; or
• the other Party shall have infringed or violated any law or regulation pertaining to the use of the Services and such Party has failed, neglected or refused to remedy such an infringement or violation within the time frame stipulated by the relevant authority.
16.4 Termination by RISB
Without prejudice to any other right or remedy, RISB may immediately terminate this Agreement in the event that:
• after the expiry of 7 days of a demand for payment by RISB for any outstanding invoices or charges in arrears has been issued, and the Customer has not paid the sum demanded;
• the Customer is in breach of any material term in this General Terms and has not remedied the same to the reasonable satisfaction of RISB by the date specified in a prior written notice issued by RISB;
• after the SCD, the Customer is in default of any of its obligations or in breach of the applicable provisions as set out in the applicable Service Form and/or Schedule, and the Customer has failed, neglected or refused to remedy such defaults after receipt of a notice from RISB to do so by the date specified in such notice;
• the Customer has breached any agreement it may have entered into with an Affiliate and has failed to rectify and remedy such breach to the reasonable satisfaction of that Affiliate;
• RISB is in receipt of a direction, order or notice issued by an appropriate authority either requiring RISB to terminate the provision of the Service to the Customer, suspend the Service or declaring that the use of the Service is contrary to the Applicable Law; or
• the Customer shall infringe or violate the Applicable Law pertaining to the use of the Service and has failed, neglected and/or refused to remedy the infringement or violation within the time frame stipulated by the relevant authority.
16.5 Termination for Force Majeure
• If either party is prevented or delayed in the performance of any of its obligations under this Agreement by a Force Majeure Event, then that party shall forthwith serve notice in writing on the other party specifying the nature and extent of the circumstances giving rise to Force Majeure and shall, subject to service of such notice, have no liability in respect of the performance of such of its obligations as are prevented by the Force Majeure events during the continuation of such events, and for such time after they cease as is necessary for that party, using all reasonable endeavours, to recommence its affected operations in order for it to perform its obligations.
• The party claiming to be prevented or delayed in the performance of any of its obligations under this Agreement by reason of Force Majeure shall take all steps as are necessary to bring the Force Majeure event to a close or to find a solution by which the Agreement may be performed despite the continuance of the Force Majeure event.
• If a Force Majeure Event occurs and continues for 30 continuous days, then either Party may in writing terminate the Service Form without any liability to each other, save for antecedent breaches and neither Party shall be liable for any breach, failure or delay in performance of its obligations pursuant to or of these terms (excluding Customer’s payment obligations), death or personal injury suffered.
16.6 Termination Notices to be in writing
Unless otherwise specified in the applicable Service Schedule, all notices of termination under this Clause must be in writing, on a Party’s letterhead and signed by the authorised officer and sent to the other Party, and a copy of which may be sent via electronic mail (addressed to the email address identified in the Service Form or Schedule) containing the scanned letter as an attachment.
16.7 Consequences of Termination
• If the Customer terminates this Agreement pursuant to Clause 16.2 General Terms or if RISB terminates this Agreement pursuant to Clause 16.3 or 16.4 of the General Terms or pursuant to any other provision in the applicable Schedule that grants RISB a specific right to terminate due to a breach by the Customer, then Customer shall pay RISB the balance Charges, and all Charges in arrears;
• If Customer terminates this Agreement pursuant to Clause 16.1 or 16.3 General Terms or pursuant any specific provision in the applicable Schedule that grant the Customer a specific right to terminate due to a breach by RISB, neither the Balance Charges nor the Termination Charges shall be payable to RISB but the Customer is required to pay any Charges that are in arrears up to the date of termination.
• If the Agreement is terminated due to a Force Majeure Event pursuant to Clause 16.5 of the General Terms, the Customer shall pay any charges that are in arrears up to the date of termination and RISB shall not be liable to the Customer for any losses, damages or expenses suffered.
• Regardless of the Party terminating the Agreement, the Service shall cease to be provided by RISB on the date of termination.
17. LIMITATION OF LIABILITY
17.1 Direct Losses
Unless otherwise specified in the applicable Service Form and/or Schedule, the liability of each Party to the other for all damages, losses, costs or expenses arising out of, in connection with or related to the Service Form, regardless of the legal principle that imposes such liability, whether in contract, equity, intended conduct, tort or otherwise, will be limited to and will not exceed, (in the aggregate for all claims, actions and causes of action of every kind and nature), an amount equal to the aggregate value of the monthly recurring charges payable to RISB (excluding any third party recurring charges) for a 12-month period. This limit does not apply to any charges owed by the Customer to RISB, recovery of the balance Charges and/or any third party recurring charges incurred in order to provide the Service.
17.2 Indirect Damage
Neither Party shall be liable to the other Party under this Agreement for loss of production, loss of profit, loss of use, loss of business or market share, loss of data, revenue or any other economic loss, whether direct or indirect, or for any indirect, incidental, consequential, aggravated or exemplary damages, whether or not the possibility of such damages could have been reasonably foreseen.
17.3 Exclusion of Liability
Unless otherwise specified in the applicable Service Schedule, RISB shall neither be responsible for any third party services or products which you access, use or acquire (whether by yourself or by RISB acting on your behalf) together with the Service, for any loss or damage caused or contributed by such services or products to the Customer nor for any losses suffered by you due to any Service interruption or suspension.
Any notice, consent, approval, request or demand (each a “Notice”) permitted or required under this Agreement must:
• be in writing;
• signed by the authorised representative of the Party giving it; and
• be delivered personally or by prepaid registered post or fax or email to the contact person designated stated in the Service Form or Schedule.
19. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed by, and to be construed in accordance with, the laws of Malaysia and the parties submit to the exclusive jurisdiction of the Kuala Lumpur Courts of Malaysia.
20. DISCLAIMER OF WARRANTIES
20.1 The Application, the Software, JaGa Product, its content and any related service(s) is provided to you on an “as is” basis.
20.2 RISB makes no representation or warranties of any kind, express or implied, in connection with the Software, Application, Platform, Service, the General Terms, the content or any related service(s). Although RISB makes reasonable effort to keep the Application up to date, RISB makes no representation, warranties, guarantees, whether express or implied, that such information is accurate, complete or up to date.
20.3 RISB shall not be liable for any direct, indirect or consequent loss arising from the modifications or amendments to the Software, Application, Service, Platform, or term of use.
20.4 You agree that you shall bear all risk arising out of your use of the Service or any other services provided by Third Party Providers and shall have no recourse against RISB in respect of the same.
21.1 Conclusive Evidence
The Parties agree that a certificate of indebtedness issued by RISB officer in charge of finance shall be binding evidence as to the amount due and owing by Customer to RISB and is conclusive in any legal proceedings, save for manifest errors or omissions.
• You represent and warrant that all information required and furnished by you to RISB in connection with the Service and in the Service, are correct and accurate in every material respect and are not false, misleading, deceptive, defamatory and/or unlawful.
• Nothing herein or the applicable Service Schedule shall imply any obligation on the part of RISB to verify the accuracy and authenticity of such information. In addition, you and RISB represent and warrant to each other that:
(i) each Party has the necessary capacity, authority, rights, licences and permissions to enter into and perform its obligations under this Agreement; and
(ii) the Service Form together with the General Terms and the applicable Schedule is a valid and enforceable agreement against a Party, notwithstanding any defect, deficiency or omission. Further RISB does not make any representations or warranty, whether express or implied, and excludes any implied warranties (whether arising by operation of Applicable Law, equity or common law) that the Service will achieve the expected functionality, will be error-free or uninterrupted, and/or is of a specified or of any quality.
21.3 Changes in Law
Should a new law or an amendment to an existing law occur that impacts the Service Form or the Service, then notwithstanding anything contained herein, the clauses herein shall be deemed to be amended to such an extent as is necessary to enable Parties to comply with such laws.
21.4 Variations of the Terms
Unless otherwise prescribed in the Schedule, RISB may vary, modify, add or delete these terms and conditions including terms in any Service Form and Schedule, at any time, and such amendments shall be effective once they are posted on https://jagasolution.com/jagasolution-community-agreement/ or the Application. It is the Customer’s responsibility to review the General Terms regularly. If the Customer uses and/or continues to use the Services after the date on which such variation comes into effect, such use shall be deemed acceptance of such variation by Customer.
By agreeing to the terms and conditions of the Agreement, the Customer shall indemnify RISB against any and all claims, demands, proceedings or fines made or imposed against RISB by a third party arising out of, in connection with or due to the Customer breach of these terms or in using the Services, including but not limited to the claims for defamation, infringement of intellectual property rights, death or personal injury, property damage.
Only a written waiver of any breach, right or remedy is only effective if it is duly signed by the Party granting the waiver. Any failure or delay of a Party to exercise or enforce (including any partial exercise or enforcement of) any provision contained herein and/or any other indulgence given by that Party shall not be deemed as a waiver by that Party of its right, power, authority, discretion, remedy or right of action against the other Party in respect of any breach by the other Party of its obligations hereunder.
21.7 Recovery of Legal Costs
In any legal proceedings commenced by RISB against you, all legal costs and expense incurred by RISB shall be recoverable from you.
21.8 Entire Agreement
This General Terms and for each service that you have subscribed from RISB, the applicable Service Form and the Schedule shall together form the entire Agreement between the Parties.
The Customer shall not assign any rights, interest, remedies and obligations herein without the prior written consent of RISB, whose consent may be withheld at its sole and absolute discretion. RISB, shall be entitled to assign, novate or transfer this Agreement or any of its right and remedies hereunder to any Affiliate without the consent of the Customer PROVIDED ALWAYS that RISB shall provide the Customer with a written notice of such assignment, novation or transfer. Nothing contained herein shall be deemed to confer any rights upon or be enforceable by any person other than the Parties hereto.
In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect.
21.11 Binding Effect
This Agreement shall be binding upon the permitted assigns and successors-in-title of the Parties hereto. It is further provided that this Agreement shall not be discharged or in any way affected by any change in the composition or identity of the Parties hereto by amalgamation, reconstruction or otherwise.
21.12 Cloud Network Infrastructure
RISB shall use its best efforts to ensure that the appropriate measures are taken to safeguard the security of its Customer’s data in its cloud network infrastructure in accordance to Malaysia laws and regulations.
In addition to the terms and conditions above, if you have subscribed to JaGaCount, you are subject and bound by the additional terms stated in Section B as stated below.
1. GENERAL TERMS AND REPRESENTATION
1.1 In collaboration with Golive Technology Sdn Bhd (“Golive”), RISB shall make available an integrated cloud-based accounting software solution specially designed for property management corporations which consists of two (2) modules, namely Property Management System (“PMS”) and Property Accounting System (“PAS”) for subscription (“the JaGaCount Solution”).
1.2 It is agreed that when you subscribed to the additional service of JaGaCount Solution which is a Platform designed and provided by Golive as a means to manage, access and process the accounting transactions within functional modules including but not limited to: ownership management, meter management, billing and invoicing, accounts payable, accounts receivable, general ledger, trial balance and audit reports, you also acknowledge and agree to adhere to Golive’s terms and conditions.
1.3 In the event of any discrepancies between Golive on RISB’s terms, RISB’s terms shall prevail and take precedence.
1.4 You agree that Golive shall be solely responsible for the functionality of the JaGaCount Solution. RISB is not responsible for the acts and omissions of Golive and/or its agent, employees and contractors as RISB does not have any control over any of Golive’s actions.
1.5 All information which you have provided in JaGacount Solution, including your Personal Data, will be provided to Golive for the purpose of allowing Golive to perform the services.1.6 You further agree and undertake to provide all information required for the setup, implementation and migration of the JaGaCount Solution including but not limited to billing item, company master and invoice footer, lot owner master, meter setup, chart of accounts, user creation, credit master, creditor opening balance, opening balance, other debtor master, other debtor opening balance and owner outstanding list within a period of ONE (1) month from the date you signed the JaGaSolution Community Service Form. For the avoidance of doubt, if you failed, hindered and/or delayed in providing RISB and/or Golive the required information within the stipulated period and/or any extension of time permitted by RISB, RISB is entitled to treat your act and conduct as a breach of material terms, terminate this Agreement immediately and the Charges made by you shall be forfeited.
2. RIGHT TO USE THE JAGACOUNT SOLUTION
2.1 Subject to the terms and conditions of this Agreement, the Customer is granted a limited, non-transferable, non-exclusive right to access and use the JaGaCount Solution via its Platform.
2.2 RISB and/or Golive retains all right, title and interest in the JaGaCount Solution, including without limitation to all intellectual property rights therein. The Customer shall not sell, lease, license, loan or otherwise transfer or dispose of the JaGaCount Solution.
2.3 RISB and Golive will be the owner of any improvements or enhancements it makes to the JaGaCount Solution, even if such improvements or enhancements are based on feedback provided by the Customer, and the Customer hereby assigns to RISB and Golive all rights and title to such improvements or enhancements and will execute all documents necessary to effect such ownership.
2.4 The Customer undertakes and agrees:
(a) not to make any copies of the JaGaCount Solution;
(b) not to use the JaGaCount Solution or Confidential Information for any purpose not specified in this Agreement;
(c) not to decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code of the JaGaCount Solution;
(d) not to alter, merge, modify, translate, adapt, or prepare any derivative work based upon the JaGaCount Solution;
(e) not to sell, rent, lease, network, loan, sublicense, assign, disclose, distribute, or otherwise transfer the JaGaCount Solution;
(f) not to make any attempt to undermine the security or integrity of RISB’s computing systems or networks;
(g) not to use, or misuse the JaGaCount Solution in any way which may impair the functionality of the JaGaCount Solution, or impair the ability of any other User to use the JaGaCount Solution;
(h) to use the JaGaCount Solution for lawful and proper purposes and comply with all applicable laws, regulations and conventions;
(i) not to seek unauthorised access to the JaGaCount Solution by any means whatsoever; and
(j) to keep the username, password or account, and all information required in connection with your use of the JaGaCount Solution confidential and up to date.
Any support or queries shall be addressed directly to RISB and/or the group message created between RISB and/or Golive and the Customer.
4. LOGIN DETAILS AND PASSWORD
4.1 The Customer will ensure that all login details, usernames and passwords required to access the JaGaCount Solution are kept secure and confidential.
4.2 The Customer agrees that the Customer will be solely responsible to RISB for all activities that occur under the Customer’s account.
4.3 The Customer will immediately notify RISB and/or Golive of any unauthorised use of passwords or any other breach of security.
5. JAGACOUNT SOLUTION AVAILABILITY
5.1 Among other things, the operation and availability of the systems used for accessing the JaGaCount Solution including computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the JaGaCount Solution. RISB is not in any way responsible for any such interference nor prevention of the Customer’s access nor use of the JaGaCount Solution.
5.2 RISB will not be liable in any manner if the JaGaCount Solution is not available at any time or for any period for any reason.5.3 If for any reason RISB has to interrupt the JaGaCount Solution for longer periods than RISB would normally expect, RISB will use reasonable endeavours to publish in advance details of such activities on the Application and/or via email in advance.
6. ACKNOWLEDGEMENTS BY CUSTOMER
6.1 The Customer acknowledges that:
(a) the Customer shall only use the JaGaCount Solution for the Customer’s lawful internal business and/or management purposes, in accordance with the terms and conditions of this Agreement.
(b) the Customer is authorised to use the JaGaCount Solution to access the information that the Customer accesses using the JaGaCount Solution (whether that information is the Customer’s own or that of anyone else) then RISB will assume that the Customer has obtained the necessary rights and/or permission to do so and that the Customer will be liable for the Customer’s actions or omissions (including any breach of the terms and conditions this Agreement);
(c) the provision of, access to, and use of, the JaGaCount Solution is on an “as is, where is” basis and at the Customer’s own risk;
(d) RISB is not the Customer’s accountant or financial advisor and the use of the JaGaCount Solution should not be a substitute for professional third party accounting or financial advice. Any accounting, financial, tax, or related questions or issues should be referred to a third party professional; and
(e) it is the Customer’s sole responsibility to determine that the JaGaCount Solution meets the needs of the Customer.
7. LIMITATION OF LIABILITY
7.1 RISB gives no warranty about the JaGaCount Solution, and does not warrant that the the JaGaCount Solution will be error-free, timely, reliable, entirely secure, virus-free, available or that it will be suitable for the Customer’s purposes or requirements to the maximum extent permitted by law.
7.2 To the maximum extent permitted by law, RISB excludes all liability and responsibility to the Customer whether arising from negligence, breach of contract or otherwise for any incidental, special, indirect, exemplary, consequential or any other damages relating to the use of or inability to use or reliance on the JaGaCount Solution.
7.3 RISB does not make any guarantees that there will be no loss of data, and this Agreement expressly excludes any liability for any loss of data no matter how caused.
7.4 Where RISB is not legally entitled to exclude its liability, RISB’s total liability for any loss or damage relating to the Customer’s use of or inability to use the JaGaCount Solution, the Software or the Website shall not exceed an amount equal to the Subscription Fees which the Customer has paid to RISB in the previous month.
7.5 Nothing in these terms however will exclude or limit RISB’s liability for death or personal injury caused by its negligence nor for fraudulent misrepresentation.
Updated on: 1st February 2021