Rymnet Solutions Sdn Bhd: Rymbee’s Cloud HRMS Software Subscription
Rymnet Solutions Sdn Bhd, a company incorporated under the laws of Malaysia (Registration No. 200301033025 (635446-H)) having a business address at 13A, Level 7, Jayaone, Jalan Profesor Diraja Ungku Aziz, 46200, Petaling Jaya, Selangor, Malaysia (“Service Provider”, “us”, “we”) is the provider of the services outlined in your (“Customer”, “you”) sales order (“Sales Order”) and/or the services you have registered on our website, apps, software and other platforms (“Site”) that are provided or operated by us(collectively, the “Services”).
The Service Provider has agreed to provide the Services to you in accordance with your Sales Order and this Agreement.
By accessing and subscribing to the Services you have agreed to be bound by the following terms and conditions governing the use of the Services (“Terms and Conditions”).
By subscribing to the Services or accepting these Terms and Conditions, you represent and warrant to us that you have the right, authority and capacity to use the Site and you are not below 18 years old and not below the age of majority as that is defined in your jurisdiction and agree to and abide by these Terms and Conditions.
If you are using the Services on behalf of an entity, by using the Site you represent that you have the necessary rights and authority to agree to these Terms and Conditions on behalf of that entity.
The Service Provider reserves the right to change these terms at any time in the absence of any other agreement in writing between the Customer and the Service Provider. Any change shall become effective upon a notification via the Services or via an email address you have registered with us on the Sales Order Form or an email address that you have subsequently provided to the Service Provider. It is your obligation to ensure that you have read, understood, and agree to any changes in the terms upon notification.
PLEASE DO NOT USE THE SERVICES IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS.
1. Defined Terms & Interpretation
1.1 Defined Terms
In this Agreement, except to the extent expressly provided otherwise:
Agreement means an agreement between the parties (the Service Provider and the Customer) including the Sales Order Form, these Terms and Conditions and its Schedules, RymbeeSupport Service Level Agreement (SLA) in Schedule 1 and Rymbee Acceptable User Policy in Schedule 2 and any amendments to this Agreement from time to time.
Authorised User refers to a Customer, whether an individual or corporate or business entity, who has been granted permission, authorisation, or a valid license to access and use the Services as specified in this Agreement and may include, but is not limited to, employees, contractors, agents, or representatives of the Customer or its affiliated organisations.
Business Day means any day other than a Saturday, Sunday or public holiday in Malaysia.
Business Hours means the hours of 0900 to 1700 [GMT+8] on a Business Day;
Confidential Information includes all information disclosed between the parties to this Agreement, whether in writing, electronically, orally or otherwise at any time before the termination of the Agreement that is marked confidential or should have been reasonably understood by the disclosing party to be confidential including Customer Data, but does not include information which already is or will becomes publicly available other than through unauthorised disclosure by the other party.
Consequential loss means any loss or damage which, although in the contemplation of the parties at the time they entered into this Agreement, is not a loss or damage which arise naturally in the usual course of things from the breach or other act or omissions including loss of contract, business opportunity, profit or anticipated profit, savings or anticipated savings or any other loss of a similar nature.
Customer means the party named on the Sales Order and their respective employees, contractors, agents, representatives or affiliated organisations.
Customer Data means any data and materials provided and disclosed by the Customer to the Service Provider when using the Services by uploading to, transmitted by or stored by the Services or generated by the Services as a result of the Customer’s use of the Services (excluding analytics data relating to the use of the Services and server log files).
Data Breach means any unauthorised access, use or disclosure of Personal Data held by or on behalf of the Customer.
Fees means those fees payable to the Service Provider as set out in the Sales Order or corresponding to the Services or Modules selected subsequently by the Customer and pursuant to clause 3 of this Agreement.
Force Majeure Event means an event or series of related events that is outside the reasonable control of either party and without the fault or negligence of either party and which by the exercise of reasonable diligence either party was unable to prevent (including failures of the internet or any public telecommunications network, telecommunications service provider, hacker attacks, denial of service attacks, power failures, industrial disputes affecting any third party, changes to the law or government regulations, pandemic, endemic, movement control orders, other natural disasters, explosions, fires, floods, riots, acts of terrorism and wars).
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights which include copyright, confidential information, trade secrets, trade names, trade marks, passing off rights, patents, utility models, geographical indications;
SST means any Sales and Services Tax imposed under the Malaysian laws and regulations.
Modules means optional software modules that the Customer may add to or delete from their main subscription during the Term of this Agreement.
Party or Parties means a party or parties to this Agreement, its successors, assignees or any person acting on behalf of and with the authority of the parties to this Agreement.
Personal Data means any personal data that will be disclosed to the Service Provider on behalf of the Customer in relation to this Agreement, including but not limited to the Customer’s name, address, contact details, date of birth, payment details, bank account details, billing information and any information related to processing of payroll and statutory calculations, ie: basic salary, allowances, benefits and contribution to income tax, employees provident fund and any government related payments.
Data Protection Law means the Malaysian Personal Data Protection Act 2010 which governs the use, processing, storage, disclosure and retention of the Personal Data.
Sales Order means any document that records the Services and Modules subscribed and the Fees payable by the Customer.
Schedules means the schedules annexed to this Agreement.
Services means the software and Support Services as set out in the Sales Order.
Support Services means support in relation to the use of the Services, the identification and resolution of errors in the Services, but shall not include the provision of Training Support.
System means the software system that is set up for the Customer that includes the Services set out in the Sales Order and based on the Terms and Conditions of this Agreement (as may be varied, modified or updated by the Service Provider from time to time).
Term means the term of this Agreement, which shall come into force on the date of execution of this Agreement by the Parties and shall continue in force indefinitely until this Agreement terminates whether automatically or not, subject to termination in accordance with clause 5.1 or any other provision of this Agreement.
Training Support means user training the appointed administrator by the customer to add data for the purpose of managing the HR system in terms of onboarding or off boarding the Customer’s staff.
2. The Services
2.1 Terms of Engagement
The Service Provider is appointed by the Customer and the Service Provider hereby accepts the appointment and agrees to provide the Services to the Customer in accordance with the terms and conditions of this Agreement.
The Service Provider hereby grants the Customer a non-transferable, non-exclusive license to use the Services by means of a supported web browser from any computer or mobile device during the Term.
The Customer will provide the Service Provider with such information and resources that the Service Provider requires to carry out its obligations and responsibilities under this Agreement in relation to its provision of the Services.
2.2 Provision of the Services by the Service Provider
The Service Provider agrees to provide Services to the Customer as set out in the Sales Order and in accordance with:
the terms of this Agreement; and
the Service Standards (as set out in Schedule 1);
2.3 Service Provider Warranties
The Service Provider represents, warrants and covenants to the Customer that, in connection with the provision of the Services:
It is legally competent to enter into this Agreement and has full authority to execute, deliver and perform its obligations under the Agreement;
It will comply with all applicable legal and regulatory requirements which apply to the exercise of its rights and fulfillment of its obligations under the Agreement;
It will use reasonable skill and diligence in carrying out its obligations in relation to this Agreement;
The use of the Services and any documentation in accordance with this Agreement will not result in a breach of Malaysian law;
The provision of the Services to the Customer will not:
infringe any person’s rights (including Intellectual Property Rights of any person); or
constitute a misuse of any Confidential Information.
It will implement a robust system data back-up regime such as:
complying with SOC2 Type 2 organization control protocols, which encompass a comprehensive set of measures designed to mitigate data loss and enhance overall data security. These protocols constitute a crucial line of defense against potential data breaches.
maintaining a data backup regimen that aligns with the Microsoft Azure Cloud backup architecture and regiment to ensure data redundancy, integrity, and swift recovery in the event of unexpected data loss scenarios as set our on Schedule 1, Clause 4.
It will enforce a business continuity plan that includes, but not limited to testing, accountability and corrective action designed to be promptly implemented and ensure a disaster recovery approach is captured in a clear disaster recovery procedure as required in the delivery of the services with the following frequency of Data Back-Up: -It will implement a robust system data back-up regime such as:
35 days Point in Time Restore (Active Back Up);
Monthly Back Up with 12 months back up retention; and
Annual Back Up with 7 years retention.
The Services may contain links to third-party web sites or services that are not owned or controlled by the Service Provider. The Service Provider gives no guarantees, warranties or representations in respect of any third-party Services and the Service Provider shall not be liable to the Customer in respect of any loss or damage that may be caused by third party services or any provider of third party services. The Customers are strongly advised to read the terms and conditions and privacy policies of any third-party web sites or services.
2.4 Customer Warranties
The Customer represents, warrants and covenants to the Service Provider that, in connection with the subscription of the Services that:
If the Customer is an individual, that it is not below the age of 18 years old and not a minor within its jurisdiction where it resides.
It has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
It will comply with Schedule 2 (Acceptable User Policy) and will ensure that all Authorised Users will comply with Schedule 2 (Acceptable User Policy).
It is responsible for obtaining and maintaining all equipment, computer hardware and software and all telecommunications services required to access and use the Services.
It will take all reasonable precautions to ensure the security of access to the Services and must not, under any circumstances, allow any third party or any person other than an Authorised User to access or use the Services for any purpose.
It agrees to inform the Service Provider immediately if it becomes aware of any unauthorised use of the Services by any person other than an Authorised User.
It will not use the Services in any way that will contravene any legal or regulatory provision under Malaysian law or the laws within its jurisdiction.
3.1 Payment of Fees
It’s the Customer agrees to pay the Fees as set out in the Sales Order within the period of [30 days] following the issuance of an invoice in accordance with clause 3.2 and any Fees for the Modules activated by the Customer which are not included in the Sales Order.
Fees paid are strictly non-refundable and there are no refunds or credits for partially used periods, unless otherwise required by applicable law. Certain requests for refund may be considered by the Service Provider on a case-by-case basis and granted at the sole discretion of the Service Provider.
To subscribe to the Services, the Service Provider will provide a payment method and provide the billing information upon checkout. By subscribing to the Services and providing the Customer’s billing information, the Customer grants the Service Provider and its third-party payment service providers the right to process payment for the applicable Fees via the Customer’s preferred online payment gateway or method:
By debit / credit card; or
By bank transfer.
The Services or some parts of the Services are available only with a paid subscription. The Customer will be billed in advance on a recurring and periodic basis (such as bi-annually or annually or prorated), depending on the type of subscription plan the Customer selects when purchasing the subscription or additional seats subscribed during the duration of the subscription. The Customer’s subscription will be automatically renewed at the end of each period for the same length of term and payment will be processed in the same manner as above, unless the Customer or the Service Provider cancels or terminates the subscription to the Services.
In the event the Customer updates its payment method or the Service Provider updates the Customer’s payment method using information provided by the payment service providers, the Customer agrees that the Service Provider to continue charging the applicable Fees to its updated payment method, including such Fees due upon automatic renewal of the subscription to the Services.
If the Service Provider is unable to process payment through the Customer’s preferred payment method, or if the Customer have a chargeback disputing charges made to its payment method and the chargeback is granted, the Service Provider may suspend or terminate the Customer’s subscription in accordance with clause 5.2.
The Service Provider may enter into alternative payment conditions by mutual agreement with the Customer.
Service Provider shall issue invoices for the Fees to the Customer in advance of each billing period for the amount and frequency as set out in the Sales Order or as subsequently subscribed unless otherwise stated.
Modules that are activated subsequently with usage charges already imposed will be invoiced in arrears.
The Fees are exclusive of SST and other taxes.
The Service Provider’s invoices will be generated electronically and transmitted by email to the email address provided by the Customer.
3.3 New Services Costs
If during the Term the product mix of the Services is amended by agreement between the Parties, and where any agreed new Services will result in the Customer incurring a third party or additional costs, the Service Provider will provide the Customer with written notice if any of these third party or additional costs (and the amount of such costs) are to be passed on to the Customer.
Unless otherwise expressly stated in this Agreement, prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of SST.
Where the Service Provider makes a taxable supply under or in connection with this Agreement, the Customer must pay to the Service Provider for the Services rendered and an amount equal to the SST payable on that Services.
The Service Provider must, as a precondition to the payment of SST under clause 3.4(b), give the Customer a tax invoice.
If an adjustment event arises in connection the Services made under this Agreement, the Service Provider must give the Customer an adjustment note in accordance with the SST law.
If this Agreement requires one party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount required to be paid, reimbursed or contributed by the first party will be reduced by the amount of input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense.
3.5 Withholding Tax
The Customer shall be responsible if the law requires the Customer to deduct an amount in respect of taxes from a payment under this Agreement, to:
pay a net amount to the Service Provider that the Service Provider would have received if the tax had not been imposed; and
pay an amount which is inclusive of the amount payable and the amount to be deducted to the relevant Government Agency (Inland Revenue Board of Malaysia) in accordance with Malaysian law.
3.6 Absence of Agreement
In the absence for any other agreement in writing between the Customer and the Service Provider, the Service Provider reserves the right to change the subscription to the Services or adjust pricing at its sole discretion by giving the Customer written notice of the variation via the Services or via the email address that the Customer has registered with the Service Provider.
4. Availability of the Services
4.1 Enhancements, Updates, New Releases
The Service Provider may, in its sole discretion, make enhancements, updates or new releases of the Site available through the Services from time to time in order to enhance or improve the functionality or operation of the Services or to comply with legislative and statutory requirements.
Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Service Provider has met the uptime guarantee in Schedule 1:
a Force Majeure Event;
a fault or failure of the internet or any telecommunications providers or network;
a fault or failure of the Service Provider’s hosting infrastructure, unless such fault or failure constitutes an actionable breach of the contract between the Services Provider and the third-party provider;
a fault or failure of the Customer’s own computer systems or networks;
any breach by the Customer of this Agreement; or
scheduled maintenance carried out in accordance with this Agreement.
The Customer shall communicate any difficulties encountered with the Services to the Service Provider as soon as is reasonably practicable.
5. Breach and Termination of Agreement
Subject to applicable law, either party may terminate this Agreement by giving written notice of termination to the other party if:
the party fails to comply with any term of this Agreement (including the terms of the Schedules);
the other party, being an individual:
becomes bankrupt or is subject to a bankruptcy petition or order or brings his or her estate within the operation of any law relating to bankruptcy;
that other party dies; or
as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs.
the party is a corporation and:
the corporation is wound up;
ceases to conduct all (or substantially all) of its business;
is or becomes unable to pay its debts as they fall due;
is or becomes insolvent or is declared insolvent; or
convenes a meeting or makes or proposes to make any arrangement or composition with its creditors.
an administrator, a receiver or a manager is appointed in respect of the party.
the interest of the party under this Agreement is attached to or taken in any legal process.
(referred to collectively as “Terminating Events”)
5.2 Termination of Cause
Upon the occurrence of any Terminating Events under clause 5.1and, within 30 Business Days after the other party serves a written notice on the breaching party:
the Terminating Events are not remedied if it is incapable of being remedied; or
if the Terminating Events are incapable of being remedied and the breaching party does not compensate the other party in accordance with the terms of this Agreement or to the other party’s reasonable satisfaction,
this Agreement may be terminated by written notice from the other party to the breaching party at any time before the breach is remedied or compensation to the satisfaction of the other party is paid.
5.3 The Service Provider’s Right to Terminate
If the Customer has not paid a correctly rendered invoice in respect of a Fee within 30 Business Days after the due date for payment and has not by that time notified the Service Provider that it disputes that invoice by setting out in writing the reasons why the Customer considers that the invoice is not correctly rendered and identifying any amounts which are in dispute, the Service Provider may:
issue a notice to the Customer advising that payment is overdue; and
terminate the Services if payment is not received within 30 Business Days of the Customer receiving that notice;
suspend or terminate the Services if the Service Provider is unable to process payment through the Customer’s preferred payment method under clause 3.1, or if the Customer has a chargeback disputing charges made to the Customer’s payment method and the chargeback is granted.
Where the Customer still fails to pay or dispute the invoice within 30 business days after receipt of the notice under clause 5.3(a) that the Service Provider may terminate the part of the Services to which the non-payment relates.
5.4 Effects of Termination
Except to the extent expressly provided otherwise in this Agreement, the termination of this Agreement shall not affect any accrued rights or remedies of either party which arose prior to the time of termination, or the provisions of this Agreement which by their nature survive termination.
Within 30 days following the termination of this Agreement for any reason stated above:
the Customer must pay to the Service Provider any Fees in respect of Services provided to the Customer before the termination of this Agreement; and
the Service Provider must refund to the Customer any Fees paid by the Customer to the Service Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the other parties’ legal rights.
6. Dispute Resolution
6.1 Dispute Resolution Process
If a dispute arises under this Agreement, either party may at any time give written notice to the other party, requesting that a meeting take place to seek to resolve the dispute.
Nominated representatives of the parties shall meet within 5 Business Days of the notice and endeavour to resolve the dispute in good faith.
If such meeting does not take place after 5 Business Days, or if the dispute is not resolved after the meeting, the matter will be referred to Mediation within 5 Business Days from the date of the notice where meeting is not held or the date of meeting if such meeting is held (whichever applicable) and a Mediator appointed in accordance with clause 6.2 and 6.3.
If the parties agree to refer a dispute to mediation, the mediation shall be administered by the Malaysian Mediation Centre (“MMC”) and will be conducted in accordance with the MMC Mediation Guidelines which set out the procedures to be adopted.
if the mediation has not commenced within 30 days, or if the dispute remains unresolved 30 days after the appointment of the Mediator, either party may pursue its rights at law by instituting or commencing court proceedings;
During a dispute, each party must continue to perform its obligations under this Agreement unless the subject matter of the dispute constitutes a breach of this Agreement or is one of the Terminating Events under clause 5 of this Agreement.
This clause 6does not restrict or limit the right of either party to terminate this Agreement where this Agreement provides such right.
Each party shall bear its own costs in connection with the mediation, legal fees or any such expenses which arise from the party’s engagement of legal representation.
The parties shall equally share the fees and expenses in relation to the mediation process, including any fees and expenses associated with the appointment of the Mediator.
Each Party ( “Indemnifying Party”) hereby agrees to indemnify and shall keep indemnified the other party (“Indemnified Party”) against any and all liabilities, damages, claims, actions, demands, costs, expenses, damage and loss (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Indemnified Party or arising from a third-party claim in connection with this Agreement arising directly or indirectly as a result of the Indemnifying Party’s own negligence or willful wrongful act or omission or breach of this Agreement.
8. Limitation of Liability
8.1 Subject to clause 8.2:
neither party shall be liable to the other party under or in respect of this Agreement for any Consequential Loss arising from negligence or breach of contract, any loss of revenue or income, any loss of use or production, any loss of business, contract or opportunities, any loss or corruption of any data, database or software or Force Majeure event except for any liability that either party has under the law in the absence of this Agreement;
the aggregate liability of the Customer to The Service Provider under or in respect of this Agreement whether in contract, tort or any other cause of action (other than the obligation to pay Fees) is limited to fees paid or payable by the Customer to the Service Provider under this Agreement; and
the aggregate liability of Service Provider to the Customer under or in respect of this Agreement whether in contract, tort or any other cause of action is limited to fees paid or payable by the Customer to the Service Provider for 1 year software subscription fees.
8.2 Nothing in this Agreement operates to limit or exclude:
liabilities that may not be limited or excluded by law; and
any liability for fraud or fraudulent misrepresentation or unlawful act or omission.
any liability for death or personal injury resulting from negligence.
Any amount claimed pursuant to the indemnity in clause 7 of this Agreement will be reduced proportionally to the extent any loss, damage, liability, claim or expense is directly caused, or contributed to, by the negligence of the Party in breach.
9.1 Requirement for writing and signature
Any notice, consent, approval request or demand made or required under this Agreement must be
signed by the party giving the notice or that party’s solicitor or any other person nominated by the party giving the notice to sign the notice.
9.2 Serving notices
Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details published on Site (as updated from time to time by the parties) or to such other address as a party to this Agreement may from time to time duly notify the other in writing:
delivering it by hand, in which case the notice shall be deemed to be received on the day the communication is given;
sending it by registered or prepaid post to the address or to the intended recipient party’s registered address, in which case the notice shall be deemed to be received 4 Business Days following posting;
sending by email to the email address, in which case the notice shall be deemed to be received at the time of transmission as shown in the email trace log;
provided that if the stated time of deemed receipt is given after the Business Hours of the day of receipt, then the time of deemed receipt shall take effect on the next Business Day.
The Service Provider and the Customer may only update an address for the service of notices by notice to the other parties to this Agreement.
10. General Provisions
10.1 Intellectual Property
The Service Provider warrants that it owns all applicable rights, title and interest in and to all Intellectual Property Rights embodied in or associated with the Services (including but not limited to any images, photographs, animations, video, audio, music and text incorporated into the Services and any accompanying published materials) (“Materials”) and the Materials will remain the exclusive property of the Service Provider and its licensors.
The Service Provider indemnifies the Customer against any Materials provided by the Service Provider infringing on any patent, copyright, registered design, trademark or name, or other protected rights.
The Customer agrees and acknowledges that nothing in this Agreement shall operate to transfer any Intellectual Property Rights from the Service Provider to the Customer.
The Service Provider agrees and acknowledges that the Customer owns the Customer Data and all Intellectual Property Rights in relation to the Customer Data.
The Customer acknowledges that the Services and the Site is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Service Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs. Among other things, the operation and availability of the Systems used for accessing the Site, including computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Site. The Service Provider or its suppliers are not in any way responsible for any such interference or prevention of your access or use of the Services.
The Customer acknowledge that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this agreement, the Service Provider will take reasonable steps to ensure that the Services will be secure.
The Customer acknowledges that it is the Customer’s sole responsibility to determine that the Site and Services meets the needs of its business.
The Customer acknowledges the Site and Services do not of themselves constitute, and are no substitute for the Customer’s own identification of and compliance with applicable laws and regulations in your jurisdiction.
The Service Provider does not provide any warranty regarding the ability of the Site or the Services to ensure your compliance with all applicable laws and regulations in your jurisdiction.
The Customer acknowledge that the Service Provider does not purport to provide any legal, taxation or accountancy advice by providing the Services under this Agreement.
In this Agreement, unless stated to the contrary:
headings are for ease of reference and do not affect the meaning of this Agreement;
words importing the singular includes the plural and words importing the male shall include female and vice versa;
other grammatical forms of defined words have corresponding meanings;
a reference to the information table or a clause, paragraph, schedule, or annexure, is to the information table, a clause or paragraph of a Schedule or annexure to this Agreement;
a reference to this Agreement includes the information table and any other Schedule or annexure;
a reference to this Agreement or any other document includes a reference to it as novated, altered or replaced;
a reference to a party includes a reference to that party’s executors, administrators, successors and assignees;
a reference to a statute, ordinance, code or law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
an agreement, representation or warranty in favour of two or more persons is in favour of them and binds them jointly and severally;
including a word (in any form) or such as when introducing a list of items does not limit the meaning of the word to which the list relates to those items or to items of a similar kind; and
no provision of this Agreement shall be construed adversely to a party because that party was responsible for the preparation of this Agreement or that provision.
The parties to this Agreement must keep the terms of this Agreement confidential and must ensure that their officers and employees keep the terms of this Agreement confidential, save for any necessary disclosure to their respective legal and financial advisers and any disclosure required for a purpose related to this Agreement or the performance of the rights or obligations of any party to it, or by law.
If, as a result of this Agreement, the Service Provider uses and processes any Personal Data about an individual held by or on behalf of the Customer, then the Service Provider:
must comply with all applicable Data Protection Laws as may be in force from time to time which regulate the handling of Personal Data;
must comply with any privacy codes, policies, procedures and guidelines established and act in accordance with the Personal Data Protection Act 2010 relating to the handling of Personal Data;
must comply with the reasonable requests of the Customer to access, correct and/or delete Personal Data, and the Privacy Commissioner’s requests to access to the Service Provider’s premises, personnel, records or information for the purpose of monitoring the Service Provider’s compliance with this clause;
must ensure that any Personal Data provided to the Service Provider by the Customer or any other person pursuant to this Agreement is, at the expiration or termination of this Agreement, returned to the Customer and/or deleted or destroyed and the Service Provider will not retain the Customer’s Personal Data for any longer than is necessary to carry out its obligations under this Agreement (provided that the Service Provider may retain any such record if it is required to do so by law).
If the Service Provider becomes aware of any act or practice which is an actual or potential breach of its obligations under the Data Protection Laws, or a Data Breach, or any complaint in relation to Personal Data, the Service Provider must:
notify the Customer immediately; and
comply with any reasonable direction or request for information from, and provide all reasonable assistance to, the Customer or relevant Privacy Commissioner with respect to:
investigating that act or practice;
remedying that breach or potential breach;
developing and implementing any rectification and preventative measures required by the Customer or the relevant Privacy Commissioner; or
resolving that complaint.
10.6 Relationship of parties
The parties agree that nothing in this Agreement will be interpreted as creating the relationship of employer and employee, master and servant or principal and agent or a partnership between the parties.
10.7 Entire Agreement
This Agreement, including its Schedules and their contents shall constitute the entire agreement between the parties in respect of the subject matter of this Agreement, and shall supersede all prior agreements, arrangements, understandings, representations, negotiations and correspondences between the parties in respect of that subject matter.
10.8 Legal Costs
Each party shall bear their own legal costs and expenses in connection with the preparation, negotiation, execution and completion of this Agreement.
If any provision of this Agreement is held to be invalid, unlawful and/or unenforceable, whether by determination of Malaysian courts or other competent authority, the part or provisions will be deemed severed or deleted from this Agreement and the remaining provisions of this Agreement shall not be affected and shall be enforced to the maximum extent permitted by law to effectuate the intent of the parties.
10.10 No waivers
No breach of this Agreement will be waived ’under this Agreement if the party not in breach:
does not exercise or partly exercises or delays exercising a right;
gives a concession to the other party or accepts a late payment; or
attempts to mitigate its loss.
No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.
10.11 Modification & Variation
The provisions of this Agreement may be varied or modified by:
a subsequent written agreement executed between the parties; or
the Service Provider may vary this Agreement by giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this clause 9, the Customer shall have the right to terminate this Agreement by giving written notice of termination to the Service Provider at any time during the period of 14 days following receipt of the Service Provider’s notice.
10.12 Governing law
This Agreement shall be governed and construed in accordance with the laws of Malaysia, excluding its conflicts of laws rules. All disputes, claims or proceedings between the Parties relating to the validity, construction and/or performance of this Agreement shall be subject to the dispute resolution process under clause 6.1 of this Agreement. In the event of failure of the dispute resolution process, the parties shall be subject to the exclusive jurisdiction of the Malaysian Courts to which the parties hereto irrevocably submit.
This Agreement may be entered into by the exchange of executed counterparts, which together comprise a fully executed agreement.
This Agreement may have been translated on the Services. In the event of conflict or inconsistencies, the English version shall prevail.
11. “As Is” and “As Available” Basis
The Services are provided to the Customer on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind in regards to all faults and defects. To the maximum extent permitted under applicable law, the Service Provider, on its own behalf and on behalf of its Affiliates, its respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Services, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the Service Provider provides no warranty or undertaking, and makes no representation of any kind that the Services will meet the Customer’s requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
Without limiting the foregoing, neither the Service Provider nor any of the its provider makes any representation or warranty of any kind, express or implied: (i) as to the operation or availability of the Services, or the information, content, and materials or products included thereon; (ii) that the Services will be uninterrupted or error-free; (iii) as to the accuracy, reliability, or currency of any information or content provided through the Services; or (iv) that the Services, its servers, the content, or e-mails sent from or on behalf of the Service Provider are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.
Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to the Customer. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.
12. COOKIE STATEMENT
We also use third party service provider(s), to assist us in better understanding the use of our Site. Our Service Provider(s) will place cookies on the hard drive of your computer and will receive information that we select that will educate us on such things as how visitors navigate around our site, what pages are browsed and general transaction information. Our Service Provider analyses this information and provides us with aggregate reports. The information and analysis provided by our Service Provider will be used to assist us in better understanding our visitors’ interests in our Site and how to better serve those interests. The information collected by our Service Provider may be linked to and combined with information that we collect about you while you are using the Site. Our Service Provider is/are contractually restricted from using information they receive from our Site other than to assist us.
Your continued use of this Site, as well as any subsequent usage, will be interpreted as your consent to cookies being stored on your device.
13. Contact Us
If you have any questions regarding this Agreement or these Terms and Conditions, please can contact us by email at [email protected].
SCHEDULE 1 – Support Service Level Agreement
1. Support Response Times
Coverage Window: The Service Provider’s Coverage Window is 0900 to 1700 [GMT+8] – during this time and outside of this time the Service Provider will respond to issues submitted to Rymbee Customer Support through phone and email based on the Priority definitions and Response Times defined below (“Support Services”).
Priority definitions and Response Times
High – The production use of the System is stopped or so severely impacted, are is inoperable or a core function of the Services is unavailable. The Service Provider will begin work on the error within 1 hour of notification and will engage development staff to achieve an acceptable work around solution within 24 hours from the time of notification.
Medium – Important features and core function of the System are impaired or unavailable. where the impairment does not constitute a serious issue; or a non-core function of the Services is significantly impaired. The Service Provider will begin work on the error within 24 hours of notification and will engage development staff to achieve an acceptable work around solution within 5 working days from the time of notification.
Low – Any impairment of the Services not falling into the above categories; any cosmetic issue affecting the Services and where the Customer requests for an enhancement, product information or documentation clarification regarding the System. The Service Provider will provide an initial response regarding the requested information or documentation clarification within 7 working days of notification and will consider enhancements for inclusion in a subsequent product update.
2. Uptime Service level requirements
The Service Provider undertakes that the hosted environment and network will be available to be accessed by the Customer at least 99.95% (Uptime) of each full calendar month during the Service Period.
3. Availability Measurement
System Availability shall be measured by the Service Provider in the following manner:
System Availability will be calculated as “Total Actual System Availability” (Uptime) divided by “Total Possible System Availability”.
Example: 995 hours Actual Availability / 1000 Total Availability = 0.995 or 99.5% Actual Availability.
3.1 Minimum Total System Availability
Minimum total System Availability will be 99.5% (3.65 hours per month or 43.8 hours per year) excluding planned outage windows.
The following will not factor into the calculation of System Availability:
Scheduled Downtime (Service Provider will issue a notice advising of such Scheduled Downtime).
The Customer’s failure to perform its obligations under the Agreement that affect the performance of the Service Provider’s System.
Factors outside the Service Provider’s control, including a Force Majeure Event.
The performance of a third party (including, but not limited to telecommunications providers or internet providers).
Actions by the Customer or the Customers’ equipment/technology or third-party equipment, software or other.
4. Back up and Disaster Recovery Methods
All backups are stored in geo-redundant storage with following recovery method:
Recover Method for VM
Geo-restore from geo-replicated backups
Application Server Back up and Restore:
Daily Back-up (Full server snapshot are backed-up daily and data retention is set at 7 days).
Database Backup and Restore:
Point in Time Restore (PITR) – Active Daily Back up, 35 Days retention
Long Term Retention (LTR) – Monthly -12 months back up retention and Annual back-up retention for up to 7 years,
All back-ups stored in Microsoft Azure storage.
5. Provision of Support Services
The Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
6. Limitations on Support Services
The Service Provider shall have no obligation to perform the Support Services outside working hours. If the provision of those Support Services will still be required, it will be subject to additional Charges.
The Service Provider shall have no obligation to provide Support Services in respect of any issue caused by:
the improper use of the Services by the Customer; or
any alteration to the Services made without the prior consent of the Service Provider.
7. Other Services performed
Year-end procedural checks/processes and updates to the Services that includes remote support and statutory updates to the Customers when deemed necessary by the Service Provider;
Annual vulnerability and web application penetration testing to ensure the integrity and security of the System.
For the purposes of this Service Standards Agreement, the following definitions shall apply:
Availability The percentage of time, during a given period, in which the Service Provider System is substantially available for the Customer’s Productive Use.
Downtime The time when the Service Provider’s System or one or more of the specified Service Provider’s System components is not available for The Customer’s Productive Use.
Productive Use The Customer’s ability to access and use the functionality of the System Provider’s System.
Scheduled Downtime Scheduled maintenance will be undertaken at regular intervals by the Service Provider. Scheduled maintenance that will cause the System’s downtime will be undertaken by the Service Provider at approximately 3-month intervals. The Customer’s shall be notified at least 72 hours in advance of such scheduled maintenance and the expected scheduled maintenance to be conducted between the hours of 0200 and 0400 (Customer’s local time).
9. Exclusion of Services
Customisation of the Services, if required and related, will be quoted separately according to the amount of work involved in such customisation, at the Service Provider’s prevailing daily rate charge;
On-site support services or other software that the Service Provider offers but not covered by this Agreement;
Other systems or software that are either working independently or interfacing cooperatively with the System in the same hardware or networking platform;
Hardware or devices on which the System is installed or operating;
Modification to the System without authorized written consent from the Service Provider;
Correction of defects that do not significantly impair or hinder the operations of the System;
Correction of defects due to improper usage, negligence or abuse intentional or otherwise on the part of the Customer, its associates, or any other third parties;
Correction of defects due to problems caused by hardware, operating system, virus attack or other similar acts, intentional or otherwise caused by the Customer, its associates, or any other third parties; and
Correction of defects due to man-made or natural disasters.
SCHEDULE 2 – Acceptable User Policy
This Acceptable Use Policy (“Policy”) sets out the rules governing:
the use of the Services made available by the Service Provider to you as a service via the internet including offline components, if any; and
the transmission, storage and processing of content and data by you, or by any person on your behalf, using the Services.
References in this Policy to “you” are to any Customer for the Services and any individual user of the Services and “your” should be construed accordingly; and references in this Policy to “us” are to Rymnet Solutions Sdn Bhd (“we” and “our” should be construed accordingly).
By using the Services, you agree to the rules set out in this Policy.
We will ask for your express agreement to the terms of this Policy before you submit any content or otherwise use the Services.
You must be at least 18 years of age or of the age of majority within your jurisdiction to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age or of the age of majority within your jurisdiction.
2. General usage rules
You must not use the Services in any way that causes or may cause damage to the Services or impairment of the availability or accessibility of the Services.
You must not use the Services:
in any way that is unlawful, illegal, fraudulent or harmful; or
in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
You must not:
attempt to undermine the security or integrity of our web application system or networks or, where the Site is hosted by a third party, that third party’s computing systems and networks (ie: Microsoft Azure Cloud Computing Platform).
use, or misuse, the Site in any way which may impair the functionality of the Site, or impair the ability of any other user to use the Site.
attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the cloud computing system on which the Site is hosted.
attempt to gain unauthorized access to any materials other than those to which you have been given express permission to access or to the computer system on which the Site is hosted.
modify, copy, adapt, reproduce, disassemble, decompile or reverse engineer the Site except as is strictly necessary to use either of them for normal operation.
You must ensure that all content complies with the provisions of this Policy.
3. Unlawful Content
Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
Content and the use of content by us in any manner licensed or otherwise authorised by you, must not:
be libelous or maliciously false;
be obscene or indecent;
infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
infringe any right of confidence, right of privacy or right under the applicable data protection legislation;
constitute negligent advice or contain any negligent statement;
constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
be in contempt of any court, or in breach of any court order;
constitute a breach of racial or religious hatred or discrimination legislation;
constitute a breach of official secrets legislation; or
constitute a breach of any contractual obligation owed to any person.
You must ensure that content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
Content must be appropriate for all persons who have access to or are likely to access the Content in question.
5. Factual accuracy
Content must not be untrue, false, inaccurate or misleading.
Statements of fact contained in the content and relating to persons (legal or natural) must be true; and statements of opinion contained in the content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behavior on the internet.
Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory, or inflammatory.
Content must not be liable to cause annoyance, inconvenience, or needless anxiety.
You must not use the Services to send any hostile communication, or any communication intended to insult, including such communications directed at a particular person or group of people.
You must not use the Services for the purpose of deliberately upsetting or offending others.
You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
You must ensure that the content is appropriately categorised.
You should use appropriate and informative titles for all content.
You must at all times be courteous and polite to other users of the Services.
7. Regulated Businesses
You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
You must not use the Services for any purpose relating to the offering for sale, sale or distribution of drugs or pharmaceuticals.
You must not use the Services for any purpose relating to the offering for sale, sale or distribution of knives, guns or other weapons.
You acknowledge that we do not actively monitor the content or the use of the Services.
9. Harmful software
The content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications, or technologies.
The content must not contain or consist of, and you must not promote or distribute or execute by means of the Services, any software, programs, routines, applications, or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.