1 GENERAL

1.1 READ THIS AGREEMENT CAREFULLY BEFORE USING ANY PROGENET SERVICE. THIS IS A LEGALLY BINDING AGREEMENT BETWEEN CUSTOMER (referred to herein as “CUSTOMER“) AND PROGENET INNOVATIONS SDN BHD (hereinafter referred to as “PROGENET“).

1.2 This agreement is subjected to change and it is CUSTOMER’s responsibility to regularly check for modifications.

1.3 PROGENET reserves the right to terminate or refuse service to anyone, at any time and for any reason, including but not limited to violation of PROGENET’s Acceptable Use Policy (AUP) or laws of Malaysia. Should PROGENET terminate CUSTOMER’s service for a reason other than violation of the Acceptable Use Policy, PROGENET will issue CUSTOMER a refund for the remaining paid period of service. Under no circumstances is PROGENET responsible for any damages resulting from termination of service. PROGENET reserves the right to refuse service to particular individuals or entities, at its sole discretion, with or without a cause.

2 SERVICES

Customer hereby agree to subscribe to services from PROGENET for the Subscription Term stated in the order. During the Subscription Term, Customer will receive a nonexclusive, non-assignable, worldwide right to access and use the PROGENET’s services solely for Customer’s internal business operations upon the terms and subject to the conditions set forth in this Agreement.

3 TERMINATION

3.1 Term of this Agreement.  The term of this Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this Clause.

3.2 Termination.  Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach. PROGENET may in addition, terminate this Agreement WITHOUT CAUSE by providing Customer ninety (90) days’ written notice of termination.

3.3 Suspension for Non-Payment.  PROGENET reserves the right to suspend delivery of the PROGENET’s services if Customer fails to timely pay any undisputed amounts due to PROGENET under this Agreement, but only after PROGENET notifies Customer of such failure and such failure continues for fifteen (15) days.  Suspension of the PROGENET’s services shall not release Customer of its payment obligations under this Agreement.  Customer agrees that PROGENET shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the PROGENET’s services resulting from Customer’s nonpayment.

3.4 Suspension for Ongoing Harm.  PROGENET reserves the right to suspend delivery of the PROGENET’s services if PROGENET reasonably concludes that Customer’s or an Authorised User’s use of PROGENET’s services:

(a) is causing immediate and ongoing harm to PROGENET or others;

(b) has or will subject PROGENET to civil or criminal liablity;

(c) is gaining unauthoirsed access to third party’s computer system, ie. ‘hacking’; or

(d) has breach any other terms and conditions of this Agreement.   

In the extraordinary case that PROGENET must suspend delivery of the PROGENET’s services, PROGENET shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. PROGENET shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of PROGENET’s services.

4 CUSTOMER DATA

4.1 The Customer Data belongs to Customer, and PROGENET makes no claim to any right of ownership in it.

4.2 PROGENET shall keep the Customer Data confidential in accordance with laws in Malaysia applicable to PROGENET in respect of PROGENET’s Services provided.

4.3 The Customer hereby consent and authorize PROGENET to use the Customer Data for the following:

(a) observing and reporting back to Customer on Customer’s usage of PROGENET’s Services, and make recommendations for improved usage of PROGENET’s Services;

(b) identifying trends of usage and publishing reports on its findings provided such reports shall not identify the user; and

4.4 PROGENET must take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Customer’s instructions, provided they are reasonable and lawful.

4.5 PROGENET warrants that PROGENET’s Services complies with the Personal Data Protection Act 2010.

4.6 PROGENET will ensure that the data center containing the Customer Data meets the following physical and electronic security requirements:

(i) single point of entry;

(ii) main access monitored with additional access for emergency purposes only;

(iii) surveillance cameras in facility;

(iv) access validation with identity check;

(v) access only to persons on PROGENET approved access list;

(vi) log-in validation;

(vii) creation of accounts only as verified by PROGENET or sub- contracted hosting provider;

(viii) access to servers via encrypted means; and

(ix) servers running behind secure firewall.

5 FEES AND BILLING

5.1 Customer agrees to pay the Subscription Fees for PROGENET’s Services. The Subscription Fee is payable monthly in RINGGIT MALAYSIA. Fees are payable in advance on the first day of each billing cycle

5.2 If for any reason the Customer fails to make any payment within the stipulated time, Customer shall pay late payment charges by way of interest calculated on a daily basis on any amount due and owing and outstanding from the expiry of its due date for payment at the rate of eight percent (8%) per annum.

5.3 For all orders of “Additional Products”, Customer may request for the payment for the Additional Products to be pro-rated and payable monthly within the Subscription Term. Such request by the Customer is subject to the approval by PROGENET.

5.4 Payment of the Subscription Fees is not subject to any set-off, withholding, counter claims or deduction by Customer for any reason whatsoever.

6 TAXES

6.1 The Subscription Fees is quoted net of withholding and any other taxes or surcharges, which shall be payable by Customer, if any. If any Sales and Services Tax (“SST”) is imposed on any goods or services supplied under this Agreement by the relevant Malaysian Authorities, Customer shall pay for the appropriate SST. Customer shall bear all of PROGENET’s costs of collection of overdue fees, including reasonable attorneys’ fees and expenses. If Customer is exempt from paying taxes on PROGENET’s Services, Customer shall provide PROGENET with reasonable proof of Customer’s tax exempt status.

7 WARRANTIES

Each party warrants to the other that it has taken all appropriate and necessary corporate action (i) to empower its duly authorized representative whose signature is affixed hereto to sign this Agreement and all of the agreements contemplated hereby to which it is a party, (ii) to authorize the execution and delivery of this Agreement and all of the agreements contemplated hereby to which it is a party, and (iii) to authorize the performance and observance of the terms and conditions of this Agreement.

8 DISCLAIMERS

8.1 PROGENET does not and cannot control the performance of PROGENET’s Services in as much as the service is impacted by power/electricity issues, network issues, data bandwidth and other like matters outside of PROGENET’s control (e.g. problems faced by electricity provider or the third-party hosting provider). It is possible that actions by third parties outside of PROGENET’s control may impair or disrupt PROGENET’s Services. Although PROGENET will take commercially reasonable actions to remedy and minimize any such events, PROGENET cannot guarantee that such events shall not occur. Accordingly, PROGENET disclaims any and all liability resulting from or related to such events.

8.2 PROGENET strongly recommends the Customer to subscribe to anti-virus program package or install and run its own anti-virus program for use with PROGENET’s Services. Therefor, PROGENET cannot accept responsibility for any loss, disruption or damage to the Customer Data which may occur as a result of virus or malicious software or program.

8.3 PROGENET and its service suppliers and licensors do not warrant that PROGENET’s Services will be uninterrupted, error-free, completely secure, or that all defects will be corrected. Customer acknowledges that PROGENET do not control nor monitor the transfer of data over the Internet, and that Internet accessibility carries with it the risk that Customer’s privacy, confidential information and/or property may be lost or compromised.

9 LIMITATION OF DAMAGES

• Neither PROGENET nor its service suppliers or licensors shall be liable for indirect, incidental, special or consequential damages, including, without limitation, damages for lost business, profits, data or use of any service, incurred by Customer or any third party in connection with this agreement, regardless of the nature of the claim (including negligence), even if foreseeable or Customer has been advised of the possibility of such damages. Neither PROGENET‘s nor its service suppliers’ or licensors’ aggregate liability for damages under this agreement, regardless of the nature of the claim (including negligence), shall exceed fifty percent (50%) of the fees paid or payable by Customer under this agreement during the twelve (12) months preceding the date the claim arose.

10 INDEMNIFICATION

10.1 Indemnification by PROGENET. If a third party makes a claim against Customer that PROGENET’s Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that PROGENET’s negligence or willful misconduct has caused bodily injury or death, PROGENET shall defend Customer and its directors, officers and employees against the claim at PROGENET’s expense and PROGENET shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by PROGENET, to the extent arising from the claim. PROGENET shall have no liability for any claim based on (a) the Customer Data, (b) modification of PROGENET’s Services not authorized by PROGENET, or (c) use of PROGENET’s Services other than in accordance with the Documentation and this Agreement.

10.2 Indemnification by Customer. If a third party makes a claim against PROGENET that the Customer Data infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend PROGENET and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

10.3 Conditions for Indemnification. A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at  the  other  party’s  expense  for  out-of-pocket expenses,  the  assistance,  information and  authority reasonably requested by the other party in the defense and settlement of the claim.

11 CONTENT

• Customer is solely responsible for the selection, compatibility, licensing, development, accuracy, performance, operation, maintenance, and support of all applications, information, software, and data, including any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets or servlets that Customer or its subcontractors or end users create, install, upload or transfer on, from or through PROGENET’s Servers (“Content”). PROGENET may immediately (and without prior notice) block access to any Content on PROGENET’s Services (i) that PROGENET believes violates the law, misappropriates or infringes the intellectual property rights of a third party, or violates the terms and conditions of this Agreement.

12 CONFIDENTIALITY

12.1 Definition. “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified  at  the  time  of  initial  disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within thirty (30) days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself. Confidential Information will also include information disclosed by third parties to a disclosing  party  under  an  obligation  of  confidentiality.    Customer Data is deemed Confidential Information of Customer. PROGENET‘s software and Documentation are deemed Confidential Information of PROGENET.

12.2 Confidentiality. During the term of this Agreement and for three (3) years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information. Neither party shall reverse engineer, disassemble or decompile any  prototypes, software  or  other  tangible  objects  which  embody the  other  party’s  Confidential Information and which are provided to the party hereunder.  Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party.

12.3 Exceptions. Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party. The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party may disclose the existence of this Agreement and the relationship of the parties, but agrees that the specific terms of this Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.

NOTICES

Every notice or demand or other required or permitted to be given or made hereunder shall:

(i) be in writing delivered personally, by prepaid registered post with recorded delivery, legible facsimile or email;

(ii) be deemed to have been received, unless otherwise proven, in the case of a letter, when delivered by hand or three (3) Business Days after it has been put into the post and, in the case of a facsimile, at the time of dispatch with confirmed answerback of the addressee appearing at the beginning and end of the transmission (provided that if the date of dispatch is not a Business Day it shall be deemed to have been received at the opening of business of the next Business Day), in the case of email at the time shown on a “delivery receipt” received by the sender; and

(iii) the addresses, fax numbers and emails for the purposes of this is:

(a) to PROGENET at:
Lot  18.2,  18th Floor
Menara  Lien  Hoe
No.8,  Persiaran Tropicana
47410 Petaling Jaya, Selangor

Facsimile: +603-7805 7795
Email:   [email protected]
Attention: Sales

14. GENERAL PROVISIONS

14.1 Non-Exclusive Service. Customer acknowledges that PROGENET’s Services is provided on a  non-exclusive basis. Nothing shall be deemed to prevent or restrict PROGENET’s ability to provide PROGENET’s Services or other technology, including any features or functionality first developed for Customer, to other parties.

14.2 Assignment.  Neither party may assign this Agreement or any right under this Agreement.  This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. 

14.3 Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

14.4 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

14.5 Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.

14.6 Entire Agreement. This Agreement (including  all  Schedules  and  Appendices, if any)  contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties.

14.7 Publicity. PROGENET may include Customer’s name and logo in its customer lists and on its website. Upon signing, PROGENET may issue a high-level press release announcing the relationship and the manner in which Customer will use PROGENET’s Services. PROGENET shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.

14.8 Statistical Information. PROGENET may anonymously compile statistical information related to the performance of PROGENET’s Services for purposes of improving PROGENET’s Services, provided that such information does not identify Customer’s data or include Customer’s name.

14.9 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in all respects in accordance with the laws of Malaysia and the parties submit to the jurisdiction of the courts of Malaysia.