MIMZY ONLINE
BEFORE YOU CLICK ON THE “I AGREE” BUTTON, PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. BY ACCESSING, DOWNLOADING, INSTALLING OR USING THE APPLICATION OR BY CLICKING ON THE “I AGREE” BUTTON, THE CUSTOMER SIGNIFIES THE CUSTOMER’S AGREEMENT TO THE TERMS AND CONDITIONS STIPULATED HERE IN AND THE CUSTOMER SHALL BE BOUND BY THE SAME.
1. GENERAL
1.1 Unless otherwise stated, this agreement, including without limitation all documents attached or referred hereto (if any) and the terms and conditions contained herein (as amended from time to time in accordance with the terms and conditions contained herein) (“Agreement”), is an agreement between the MIMZY Sdn. Bhd. (“MIMZY”) and the customer of MIMZY as described in the Order Confirmation Email (as hereinafter defined) (“CUSTOMER”).
1.2 The CUSTOMER acknowledges that the CUSTOMER has read and agrees to comply with and be bound by this Agreement.If the CUSTOMER disagrees with any part of this Agreement, the CUSTOMER shall immediately cease any access and/or use of the Application(as hereinafter defined)and shall immediately notify MIMZY of such disagreement.
1.3 If an individual is agreeing to or accepting this Agreement on behalf of (and for use on behalf of) a company, governmental entity, partnership or other entity ("Entity"), the individual represents that he/she has procured all the necessary consents and has the authority to enter into this Agreement on behalf of such Entity.
2. DEFINITIONS
2.1 Unless the context otherwise requires, the following words and expressions shall have the respective meanings:
- “Applicable Laws” means all applicable laws, legislations and/or statutes (or any provision thereof), including any subsidiary legislation, guidelines, rulings, codes, determinations, legal requirements and/or regulations made in pursuance thereof and other legal requirements of the relevant legal, statutory, governmental and/or regulatory authorities or bodies;
- "Application" means the MIMZY ONLINE application software which is made available or to be made available by MIMZY(as hereinafter defined)via the internet for access and use by the CUSTOMER in accordance with the Specifications and the terms and conditions contained in this Agreement. Unless the context otherwise requires, the Application shall include: (i) the SaaS Services;and (ii) Updates and New Releases. References to the Application shall include references to any part thereof where relevant.
- “Order Confirmation Email” means the order confirmation email sent by MIMZY to the CUSTOMER confirming the CUSTOMER’s order in respect of the CUSTOMER’s subscription to the Application, which containsa link for the CUSTOMER to access and use the Application.
- “CUSTOMER Data and Materials” means: (i)the Materials originated from the CUSTOMER; (ii) the Materials submitted, made available and/or supplied by the CUSTOMER or the Usersto MIMZY under this Agreement which are processed (or to be processed) by MIMZY on the CUSTOMER’s behalf for the purpose of this Agreement;(iii) the CUSTOMER’s Confidential Information; and/or (iv) the Materials owned by the CUSTOMER or in which any of the CUSTOMER”s Intellectual Property Rights subsist. For the avoidance of doubt, the CUSTOMER Data and Materials shall include without limitation the Hosted Data.
- “Hosted Data” means the CUSTOMER Data and Materials that is hosted by MIMZY (or MIMZY's hosting services provider) under this Agreement.
- “Intellectual Property Rights” means the intellectual property rights, including without limitation, rights, titles and interests in, to, under or in connection with (wherever in the world, whether registered or unregistered, including any application or right of application for such rights, titles and interests and the renewal or extension of such rights, titles and interests): (a) inventions and patents; (b) copyright, copyrightable works and rights in the nature of or analogous to copyright; (c) names, marks, trade names, trademarks, service marks and logos; (d) designs and circuit layouts; (e) any Confidential Information,trade secrets and know-how; and (f) other rights, titles and interests similar to the foregoing or are otherwise capable of being protected as intellectual property rights.
- “Materials” means any information, documentation, properties, programs, details, content, data, images, photographs, files, text, audio or video clips, graphics and/or other materials.
- “Permitted Purpose” meansfor the purpose of, and only to the extent necessary for the purpose of: (i) the CUSTOMER’s personal use reasonably contemplated under this Agreement; (ii)the CUSTOMER’s internal business operation and processing reasonably contemplated under this Agreement; (iii) complying with any Applicable Laws and/or the terms and conditions contained in this Agreement; and/or (iv)the carrying out the CUSTOMER’s obligations and enforcing the CUSTOMER’s rights under this Agreement.
- “Personnel, Affiliates and Contractors” means the relevant personnel,employees,officers,suppliers, agents, representatives, vendors, affiliates, professional advisors, service providers and/or contractors of a Party. For the avoidance of doubt, no Party shall be considered the Personnel, Affiliates and Contractors of another Party for the purpose of this definition.
- “Provisioning of Services Purpose” means for the purpose of, and only to the extent necessary for the purpose of: (i)MIMZY’s internal business operation and processing;(ii) granting the CUSTOMER the right to access and use the Application; (iii) complying with any Applicable Laws and/or the terms and conditions contained in this Agreement; (iv)the carrying out MIMZY’s obligations and enforcing MIMZY’s rights under this Agreement; and/or (v) other purposes reasonably contemplated under this Agreement in respect of the Application.
- “Specifications” means the specifications published by MIMZY on https://mimzyonline.com in respect of the functionalities and features of the Application subscribed by the CUSTOMER (as confirmed in writing pursuant to the Order Confirmation Email).For the avoidance of doubt, the Specifications may vary depending on, the subscription model (Basic, Standard and Premium) subscribed by the CUSTOMER. The Specifications may be updated or varied by MIMZY from time to time subject to Clause 22 (Variation).
- “SaaS Services” means the software-as-a-service services and features provided or made available (or to be provided or made available) by MIMZY through the Application to the CUSTOMER in accordance with the Specifications and the terms and conditions stipulated in this Agreement.
- “MIMZY Materials” means: (i) the Application and the Materials originated from MIMZY; (ii) the Materials submitted, made available or supplied by MIMZY to the CUSTOMER pursuant to this Agreement excluding the CUSTOMER’s Data and Materials; (iii) MIMZY’s Confidential Information; (iv) the Materials relating to the Application and/or MIMZY’s business, operations and/or Personnel, Affiliates and Contractorswhich are obtained by the CUSTOMER (and/or the CUSTOMER’s Personnel, Affiliates and Contractors) and/or submitted, made available or supplied by MIMZY(or on MIMZY’s behalf) to the CUSTOMER (and/or the CUSTOMER’s Personnel, Affiliates and Contractors) under or as a result of this Agreement; (v) the Materials owned by MIMZY or in which any of MIMZY”s Intellectual Property Rights subsist; and/or (vi) any Materials derived from any of the foregoing.
- "Third-Party Software and Services" means software, software components and products or software and/or data services developed or provided by a third party or whose Intellectual Property Rights belongs to a third party. The Third-Party Software and Services may be supplied in or in connection with the Application.
- “Updates and New Releases” means updates and new releases of the Application as may be provided or released by MIMZY from time to time in the manner and frequency MIMZY deems fit at its sole and absolute discretion.
- “Users” means any person(s)and/or personnel, including without limitation the CUSTOMER’s Personnel, Affiliates and Contractors authorised by the CUSTOMER to access and use the Application for the benefit of and on behalf of the CUSTOMER for the Permitted Purpose.
- “User Credentials” means the username(s), user IDs, password(s) and/or other log-in credentials created and/or used by the CUSTOMER to access and use the Application.
3. SUBSRIPTION TERM
3.1 The subscription in respect of each subscription model (Basic, Standard and Premium)shall be on a monthly basis as below:
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No.
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Subscription
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Subscription Terms and Renewal
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1
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Monthly
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The initial subscription term in respect of the Application shall commence on the date the Order Confirmation Email is sent by MIMZY to the CUSTOMER and shall continue for an initial period of one (1) month unless otherwise terminated earlier in accordance with the terms and conditions stipulated in this Agreement (“Initial Subscription Term”).
The subscription shall automatically be renewed for successive periods of one (1) month following the Initial Subscription Terms (each a “Renewal Period”) unless either Party gives the other Party at least one (1) full month’swritten notice of its intention not to renew the subscription in respect of the Application(“Non-Renewal Notice”).Upon issuance of the Non-Renewal Notice, the subscription shall cease on the last day of the next Renewal Period (“Effective Termination Date”) and the Fees shall continue to be incurred until the Effective Termination Date. As an illustration,
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Items
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Dates
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Initial Subscription Term
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5th August 2019 – 4th September 2019
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Non-Renewal Notice by the CUSTOMER
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15th Dec 2020
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Expiry of the Subscription Term
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4th Feb 2021 (Fees in respect the final monthly subscription term (5th January 2021 – 4th February 2021) shall be paid by the CUSTOMER)
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3.2 The Renewal Period shall be subject to the same terms and conditions (mutatis mutandis) contained in this Agreement save and except for the terms and conditions amended or varied in accordance with the terms and conditions contained in this Agreement.
3.3 The Initial Subscription Term together with any subsequent Renewal Period(s) (if any) shall constitute the “Subscription Term”. Unless otherwise terminated earlier in accordance with the terms and conditions contained in this Agreement, this Agreement shall expire on the expiry of the Subscription Term.
4. THE APPLICATION
4.1 Subject to the CUSTOMER’s compliance with the terms and conditions of this Agreement and the payment of the Fees, MIMZY agrees:
(a) to grant the CUSTOMER a limited, non-exclusive and non-transferable right to permit the Users to use the Applicationin accordance with the Specifications and the terms and conditions contained in this Agreement during the Subscription Term solely for the Permitted Purpose; and
(b) to provide the SaaS Services through the Application in accordance with the Specifications and the terms and conditions contained in this Agreement during the Subscription Term.
4.2 Unless otherwise agreed by MIMZY, all works/services which are required to be performed by MIMZY under this Agreement will be provided remotely.
4.3 The CUSTOMER shall ensure and shall procure all Users to ensure that the User Credentials used by the Users to access and use the Application shall be kept secured and confidential at all times. The CUSTOMER shall be responsible for ensuring that the Users diligently maintain the confidentiality of the User Credentials and will not disclose the User Credentials to any person or third party not authorised to access and use the Application.
5. FEES
5.1 The CUSTOMER shall pay the fees in respect of the Application as confirmed via the Confirmation Email in accordance with this Clause 5 (Fees) (“Fees”). To the maximum extent permitted by all Applicable Laws, all Fees paid by the CUSTOMER are not refundable as MIMZY will commit to the period subscribed by the CUSTOMER.
5.2 The Fees payable in respect of the Initial Subscription Term shall be paid by the CUSTOMER to MIMZY in advance prior to the commencement of the Initial Subscription Term. The Fees payable in respect of each Renewal Period shall be paid to MIMZY in advance prior to the commencement of the said Renewal Period. The computer generated invoices in respect of the Fees will be available in the Application for viewing and download by the CUSTOMER.
5.3 Unless otherwise stipulated by MIMZY, the Fees shall be exclusive of all duties, imposts and taxes arising from or incidental to this Agreement (including but not limited to value added tax, sales and service tax, levies, duties and/or imposts that may result from the provision, use and/or supply of the Application) (collectively “Taxes”). The Taxes (if any) shall be payable by the CUSTOMER in addition to the Fees in a timely manner and the CUSTOMER shall keep MIMZY fully indemnified of any such Taxes. For clarity, each Party shall be responsible for taxes assessable against it based on its income and/or employees.
5.4 If any of the Fees isnot received by MIMZY on or before the commencement of the Initial Subscription Term or the relevant Renewal Period (as the case may be), without prejudice to any other rights and remedies of MIMZY and upon providing the CUSTOMER with seven (7) days’ prior notice, MIMZY shall have the sole discretion to discontinue and/or suspend the CUSTOMER’s and/or the Users’ use of and access to the Application without being responsible and/or liable for any consequence whatsoever resulting from such discontinuance and/or suspension.
5.5 The Fees set out herein are exclusive of travel expenses, per diem allowance and out-of-pocket expenses, including but not limited to expenses in respect of air tickets and hotel accommodation, if any (“Out of Pocket Expenses”). MIMZY shall be entitled to claim such Out of Pocket Expenses (if any) incurred pursuant to this Agreement from the CUSTOMER in addition to the Fees and MIMZY shall be fully reimbursed by the CUSTOMER.
6. TERMS OF USE OF THE APPLICATION AND CUSTOMER MATERIALS
Terms of Use
6.1 Except as expressly set out in this Agreement or expressly authorised by MIMZY in writing, the CUSTOMER shall not and shall not attempt to and shall ensure that the Users shall not and shall not attempt to:
(a) copy, distribute and/or disseminate the Application or any part thereof for any purposes except where such act is necessary for and incidental to the normal use of the Application for the Permitted Purposeor where it is necessary for back-up, operational and/or security reasons reasonably contemplated under this Agreement;
(b) rent, lease, licence, sell, loan, translate, merge, adapt, vary or modify the Application or any part thereof;
(c) disassemble, decompile, reverse-engineer,recreateor otherwise reduce to human-perceivable form all or any part of the Application;
(d) reconstruct, identify or discover any underlying software, source code, underlying ideas, underlying user interface techniques or algorithms of the Application or any part thereof;
(e) create derivative works based on the whole or any part of the Application;
(f) commercially exploit the Application. The Application shall not be commercialisedin any manner whatsoever;
(g) use the Application for any purpose other than the Permitted Purpose;
(h) make alterations or modifications to the whole or any part of the underlying software of the Application, or permit the underlying software of the Application or any part thereof to be combined with, or become incorporated in, any other programs;
(i) use the Application in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with or not authorised by this Agreement;
(j) engage in any conduct which will violate any Applicable Laws or infringe MIMZY’s Intellectual Property Rights or those of any third party in relation to the use of the Application;
(k) use any device, software or routine to interfere or attempt to interfere with the proper working of the Application;
(l) transmit or distribute,or cause to be transmitted or distributed,any malicious code, viruses or harmful datainto or through the Application or any operating system.The CUSTOMER shall, and shall ensure that the Users, continuously operate nationally recognised or reasonable virus scanning software to ensure that the CUSTOMER’s and/or the User’s system that integrates with or connected to the Application does not contain any virus or any other contaminant;
(m) misuse, abuse or hack into any aspect of the Application in any manner whatsoever or otherwise compromise the integrity of MIMZY software or systems;
(n) collect, share or harvest any Materials from the Application and/or MIMZY’s systems (except where such act is necessary for and incidental to the normal use of the Application for the Permitted Purposeor where it is necessary for back-up, operational and/or security reasons reasonably contemplated under this Agreement);
(o) access any Materials not intended for the CUSTOMER, including without limitation logging into a server or an account which the CUSTOMERis not authorised to access;
(p) send, publish or advertise any unsolicited advertising or promotional content through or on the Application;
(q) overload, “flood,” “spam,” “mail bomb,” or “crash” the Application;
(r) take any action that places excessive demand on the Application or imposes, or may impose, an unreasonable or disproportionately large load on MIMZY’s servers or other portion of MIMZY’s infrastructure;
(s) use the Application in a way that could: (i) damage, disable, overburden, impair or compromise MIMZY’s systems or security; or (ii) interfere with other users’ use and enjoyment of the Application in any manner whatsoever;
(t) scan, test or tamper with the security or configuration of the Application or otherwise breach any security or authentication measures;
(u) bypass or circumvent measures employed to prevent or limit access to the Application; and/or
(v) decipher any transmissions to or from the servers running any of the Application.
6.2 The proprietary notices on any part of the Application shall not be altered, defaced or removed by the CUSTOMER under any circumstances whatsoever.
Use of MIMZY Materials and/or the Application
6.3 The CUSTOMER shall limit the access to and use of MIMZY Materials and/or the Application to only such persons who are required to access and use MIMZY Materials and/or the Application for the Permitted Purpose.
6.4 Subject always to Sub-Clause 3 above, the CUSTOMER shall use, and ensure that the Users, the CUSTOMER’s Personnel, Affiliates and Contractors, any third parties permitted by the CUSTOMER to have access to MIMZY Materials and/or the Application and/or other third parties engaged by the CUSTOMER who may or will have access to MIMZY Materials and/or the Application (“Recipients of MIMZY Materials”) use, MIMZY Materials and/or the Application solely for the Permitted Purpose.The CUSTOMER shall supervise and control the use of MIMZY Materials and/or the Application by all such Recipients of MIMZY Materials in accordance with the terms and conditions contained this Agreement. The CUSTOMER shall take all necessary steps and measures to prevent any unauthorised access to, or use of, MIMZY Materials and/or the Application and, in the event of any such unauthorised access or use, the CUSTOMER shall promptly notify MIMZY.
6.5 The CUSTOMER shall take appropriate action, by instruction, agreement or otherwise, to ensure that all Recipients of MIMZY Materials: (a)shall comply with the relevant terms and conditions contained in this Agreement, including without limitation Clause 6 (Terms of Use of the Application and Customer Materials), Clause 9 (The Customer’s Obligations), Clause 14 (Intellectual Property Rights) and Clause 15 (Confidentiality)(“Relevant Terms”); and (b) shall not cause the CUSTOMER to breach any of its obligations contained in this Agreement.
6.6 The CUSTOMER shall be fully responsible and assume full liability for: (a) any acts, omission, violation, breach, non-observance, non-compliance and/or negligence by or on the part of any of the Recipients of MIMZY Materials that would constitute a breach under this Agreement or otherwise cause the CUSTOMER to be in breach of any of its obligations under this Agreement;(b) any disclosure or use of MIMZY Materials and/or the Applicationin a manner not permitted under this Agreement by any of the Recipients of MIMZY Materials;(c) any violation, breachand/or non-observanceof or non-compliance with any of the Relevant Terms by or on the part of any of the Recipients of MIMZY Materials; and/or (d) the acts or omissions of any third party having unauthorised access to MIMZY Materials and/or the Applicationdue to any reason attributable to the CUSTOMER’s failure to comply with the terms and conditions contained herein, including without limitation failure to supervise and control the use of MIMZY Materials and/or the Application in the manner required under this Agreement.
Unlawful Materials and activities
6.7 The CUSTOMER shall not and shall not attempt to, and shall ensure that the Users shall not and shall not attempt to,store in, distribute or transmit to or through the Application any Materials that (or cause to be stored in, distributed or transmitted to or through the Application any Materials that) is unlawful, technologically harmful, threatening, abusive, discriminatory, defamatory, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate or infringe any Applicable Laws or the rights (including without limitation any Intellectual Property Rights) of others.
6.8 The CUSTOMER shall not use the Application to facilitate any unlawful or illegal activities.
CUSTOMER Data and Materials
6.9 The CUSTOMER shall own all rights, title and interest in and to all of the CUSTOMER Data and Materials and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the CUSTOMER Data and Materials.
6.10 The CUSTOMER grants MIMZY(and/or its Personnel, Affiliates and Contractors) the right to, and shall be responsible for obtaining and maintaining all necessary approvals, permits and consents (under law, contracts or otherwise) for MIMZY (and/or its Personnel, Affiliates and Contractors) to, collect, access, use, process and/or transferthe CUSTOMER Data and Materials for the Provisioning of Services Purpose.
6.11 The CUSTOMER warrants and shall ensure that the collection of, access to, use of, processing of and/or transferofthe CUSTOMER Data and Materialsby MIMZY(and/or its Personnel, Affiliates and Contractors)under this Agreement for the Provisioning of Services Purposewill not infringe or violate any Applicable Laws and/or the rights (including without limitation the Intellectual Property Rights) of any third party.
MIMZY’s Rights to remove/delete CUSTOMER Data and Materials
6.12 Without prejudice to any rights or remedies of MIMZY under this Agreement or at law, MIMZY shall be entitled, without any liability whatsoever, to remove or delete any of the CUSTOMER Data and Materials that violates or breaches or may violate or breach any of the terms and conditions contained in this Clause 6 (Terms of Use of the Application and Customer Materials) from the Application.
7. NOT USED
8. AUDIT
8.1 During the Subscription Term, upon request by the authorities or where MIMZY suspects there has been a breach of this Agreement and/or of the law, the CUSTOMER shall grant and provide, and procure the grant and provisioning to, MIMZY, its nominees and/or any third party auditor appointed by MIMZY (“Auditor”) access to the relevant materials, reports, records, Users, data, documents, devices, equipment, systems, sites and premise in order for MIMZY and/or the Auditor to review, audit and inspect the performance of the CUSTOMER’s obligations under this Agreement, the CUSTOMER’s compliance with the terms and conditions under this Agreement and/or the CUSTOMER’s activities relevant to this Agreement. The CUSTOMER shall provide all necessary assistance to MIMZY and/or the Auditor for the purpose of conducting the review, audit or inspection.
8.2 Without prejudice to any other rights and remedies of MIMZY under this Agreement or at law, if any review, inspection and/or audit reveals that the CUSTOMER has failed or is failing to perform any of its obligations or is in breach of any of the terms and conditions under this Agreement, the cost of such review, inspection and/or audit incurred and/or suffered by MIMZY shall be fully borne by the CUSTOMER.
9. THE CUSTOMER'S OBLIGATIONS
9.1 The CUSTOMER shall, at its own cost and expense:
(a) co-operate with and assist MIMZY(and/orMIMZY’s Personnel, Affiliates and Contractors)with all matters in connection with this Agreement;
(b) provide MIMZY (and/or MIMZY’s Personnel, Affiliates and Contractors) with all necessary information as may be reasonably required by MIMZY for the Provisioning of Services Purpose;
(c) if reasonably required by MIMZY, provide and secure for MIMZY (and/or MIMZY’s Personnel, Affiliates and Contractors)all necessary access to and/or use of the relevant CUSTOMER’s site(s), the relevant CUSTOMER’s operating environment/system and such other facilities, premises, sites, devices, equipment and/or resources in connection with the CUSTOMER’s operating environment/system (including without limitation use of consumables and access to telecommunication services at the relevant sites) to the extent necessaryfor the Provisioning of Services Purpose;
(d) secure for MIMZY(and/or MIMZY’s Personnel, Affiliates and Contractors) the right to access, operate, modify and/or use any third-party software, services, product and/or equipment forming part of the CUSTOMER’s operating environment, network and systemor within the CUSTOMER’s control, to the extent necessary for the Provisioning of Services Purpose;
(e) comply with all Applicable Laws and procure, obtain and maintain all necessary licences, consents, approvals and permits (required under Applicable Laws, contracts or otherwise) in connection with the use ofand access to the Applicationby the CUSTOMER and the CUSTOMER’s business activities and obligations in connection with and under this Agreement;
(f) comply with all reasonable policies, instructions and procedures in connection with the use of the Application as published/imposed or may be published/imposed by MIMZY from time to time; (g) declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement;
(h) immediately notify MIMZY of any matter which may materially affect its obligations contained in this Agreement;
(i) carry out all obligations under this Agreement in a timely and efficient manner;
(j) take all necessary steps to ensure and procure that the Users, the CUSTOMER’s relevant Personnel, Contractors and Affiliates and the Recipients of MIMZY Materialscomply with the Relevant Terms;
(k) ensure that the specifications and requirements specified by MIMZY (if any) in respect of the CUSTOMER’s operating environment, network and systemwhich are used or to be used in connection with the Application are observed and complied with by the CUSTOMER; and
(l) be solely responsible for the preparation, procurement and maintenance of: (i) its operation environment, network and system and all other facilities, devices, hardware and software necessary for the purpose of this Agreement which do not form part of MIMZY’s scope of work under this Agreement; and (ii) all necessary network connections and telecommunications services (including without limitation access to the internet) at its site(s) and the CUSTOMER’s relevant operating environment/system.
10. MIMZY’S OBLIGATIONS AND THIRD PARTY SOFTWARE
10.1 MIMZY shall:
(a) carry out all obligations under this Agreement in accordance with the terms and conditions contained in this Agreement;
(b) correct any defects discovered and found in the Application which prevent the normal use of the Applicationin accordance with the maintenance schedules specified by MIMZY from time to time subject to Clause 11 (Warranties, Disclaimers and Exclusions);
(c) sign all documents and do all things necessary or desirable to give full effect to this Agreement and shall procure its Personnel to declare, make or sign all documents and do all things necessary or desirable to give full effect to this Agreement; and
(d) co-operate with the CUSTOMER in matters in connection with this Agreement
10.2 The Third-Party Software and Services may be supplied in or in connection with the Application and licensed under separate terms and conditions stipulated or published in the Application or stipulated in the documentation supplied by MIMZY and notified to the CUSTOMER (“Third Party Software Terms”).The CUSTOMER acknowledges that certain Third-Party Software and Services are provided by MIMZY as a “pass through” to the CUSTOMER and such Third-Party Software and Services may be covered by a warranty offered by such third-party.
10.3 The CUSTOMER acknowledges that Third- Party Software and Services may be supplied subject to the Third Party Software Terms and the CUSTOMER shall comply with all such Third Party Software Terms in addition to the terms contained in this Agreement. Third-Party Software and Services where no Third Party Software Terms are specifically notified to the CUSTOMER or published by MIMZY shall be subject to the terms and conditions of this Agreement, except that such Third-Party Software and Services are not subject to any warranties set forth in this Agreement. MIMZY expressly disclaims and excludes any warranty pertaining to Third-Party Software and Services to the maximum extent permitted by all Applicable Laws.
11. WARRANTIES, DISCLAIMERS AND EXCLUSIONS
11.1 Subject to the CUSTOMER complying with its obligations under this Agreement, MIMZY warrants that the right to access and use the Application will be granted to the CUSTOMER, in accordance with the terms and conditions contained in this Agreement.
11.2 Notwithstanding anything contained herein, MIMZY does not warrant that:
(a) the Application will be uninterrupted or error-free. Maintenance, updating and/or upgrading works may be carried out from time to time. The Application may not be available during the period such maintenance, updating and/or upgrading works are being carried out and MIMZY shall not be held responsible or liable in any manner whatsoever for such unavailability;
(b) the Application is free of viruses or other technologically harmful threats. The CUSTOMER shall be responsible for implementing all necessary security measures or appropriate scanning and protective mechanisms for the security of the CUSTOMER’soperating environment and system; and
(c) the Application will meet the CUSTOMER's requirements unless such requirements have been agreed in writing by the Parties.
11.3 Not with standing anything contained herein, MIMZY shall not be liable in any manner whatsoever for: (i)any non-conformity, error, issue, defect and/or problem in connection with the Application; and/or (ii) claim, action, breach, failure, indemnity, proceeding, demand, penalty, fine, suit, liability, loss, damage, cost (including legal fees on a solicitor-client basis) and/or expense,(“Liability”) to the extent such Liability arises from, is due to or is in connection with any of the following:
(a) any unilateral or unauthorised alteration, modification, variation, translation or revision by the CUSTOMER,the Users, the CUSTOMER’s Personnel, Affiliates and Contractors and/or the Recipients of MIMZY Materials of MIMZY Materials and/or the Application;
(b) the improper or unauthorised use or operation of MIMZY Materials and/or the Application, including without limitation the use of the Applicationfor a purpose for which it was not designed, outside the scope of this Agreement or outside the provisions laid down in any documentation or manual supplied with the Application;
(c) the use of MIMZY Materials and/or the Application by any person not authorised under this Agreement;
(d) anything which the CUSTOMER and/or the Users provide which is incorporated into MIMZY Materials and/or the Application;
(e) any failure, breach, misconduct, default, misrepresentation, non-observance, non-compliance, non-performance, neglect, negligence and/or omission (whether in tort, contract or otherwise) by oron the part of the CUSTOMER, the Users, the CUSTOMER’s Personnel, Affiliates and Contractors, the Recipients of MIMZY Materials and/or of any other person for whose acts or omissions the CUSTOMER is liable (vicariously or otherwise) under or in connection with this Agreement, including without limitation the CUSTOMER’s breach of or non-compliance with any of the terms and conditions contained in this Agreement and/or the Users breach of, non-compliance with or non-observance of the Relevant Terms;
(f) the transfer of data over communications networks and facilities, including the internet, and the CUSTOMER acknowledges that the Application may be subject to limitations, delays and other problems inherent in the use of such communications networks and facilities; and/or
(g) any third party, third party services and/or third party system/ product/ software used in connection with the Application which is beyond MIMZY’s reasonable control.
11.4 If MIMZY agrees to attend to any condition, error, issue, defect and/or problem due to or caused by any of the foregoing events, such services shall be considered out of scope services and additional charges shall apply.
12. LIABILITY
12.1 To the maximum extent permitted by all Applicable Laws and notwithstanding anything contained in this Agreement:
(a) save and except the warranties expressly provided herein, the Application are provided on an “as is” and “as available” basis, without warranty or guarantee of any kind whatsoever (whether express or implied), and MIMZY hereby disclaims and excludes all warranties and guarantees of any kind whatsoever (whether express or implied) including without limitation, any implied warranties of merchant ability, non-infringement and/or fitness for a particular purposesave and except the warranties expressly provided herein; and
(b) in no event shall MIMZY be liable for any loss of profit, good will, business, production and/or revenue, whatsoever, whether or not such damages and/or losses were reasonably foreseeable or MIMZY had been advised of the possibility of the CUSTOMER incurring the same.
12.2 To the maximum extent permitted by all Applicable Laws and notwithstanding anything contained in this Agreement, in no event shall MIMZY be liable for any indirect, incidental, special, punitive and/or consequential damages and/or losses whether or not such damages and/or losses were reasonably foreseeable or MIMZY had been advised of the possibility of the CUSTOMER incurring the same.
12.3 To the maximum extent permitted by all Applicable Laws and notwithstanding anything contained in this Agreement, MIMZY’s maximum and cumulative total liability (including without limitation liability under or in respect of any claim, action, breach, failure, indemnity, proceeding, demand, penalty, fine, suit, liability, loss, damage, cost (including legal fees on a solicitor-client basis) and/or expense and any liability for acts and omissions of MIMZY’s Personnel, Affiliates and Contractors) however arising, under or in connection with this Agreement, whether in tort, contract or otherwise shall not exceed a sum equivalent to the Fees payable by the CUSTOMER or the Fees for the first six (6) months of the Subscription Terms, whichever is lower.
13. INDEMNITY
13.1 The CUSTOMER shall indemnify, hold harmless and if so requested by MIMZY, defend MIMZY and/or its Personnel, Affiliates and Contractors (“Indemnified Party”) from and against any and all claims, actions, suits, proceedings, losses, costs(including legal fees on a solicitor-client basis), demands, damages, fines, penalties, liability and/or expenses (“Losses”) made against, suffered, or incurred by the Indemnified Party arising out of or in connection withany failure, violation, breach, misconduct, default, non-observance,non-compliance, misrepresentation, non-performance, neglect, negligence and/or omission (whether in tort, contract or otherwise) by or on the part of the CUSTOMER, the Users, the CUSTOMER’s Personnel, Affiliates and Contractors, the Recipients of MIMZY Materials and/or of any other person for whose acts or omissions the CUSTOMER is liable (vicariously or otherwise) under or in connection with this Agreement regardless of whether or not legal proceedings have been instituted and irrespective of the means, manner or nature of any settlement, compromise, or determination.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 All Intellectual Property Rights of a Party (and/or its Personnel, Affiliates and Contractors) shall continue to be owned by the Party (and/or its Personnel, Affiliates and Contractors). Nothing in this Agreement shall transfer or assign any such Intellectual Property Rights to the other Party.
14.2 As between MIMZY and the CUSTOMER, all Intellectual Property Rights in relation to any intellectual or industrial Materials created pursuant to this Agreement by MIMZY shall belong absolutely to and immediately vest in MIMZY upon its creation.
14.3 As between MIMZY and the CUSTOMER, MIMZY shall own the following Materials (including all Intellectual Property Rights subsisting there in which shall be vested solely in MIMZY):
(a) Application;
(b) MIMZY Materials; and/or
(c) any Materials derived from any and all of the foregoing (including without limitation the extensions of, modifications to and/or works derived from the Application and/or MIMZY Materials).
14.4 This Clause 14 (Intellectual Property Rights) shall survive the termination or expiry of this Agreement for whatsoever reason.
15. CONFIDENTIALITY
15.1 The “Confidential Information” of a Party (“disclosing Party”) shall mean all Materials of any kind, whether in writing, machine readable or visually readable form, oral or otherwise and whether or not labelled as “Confidential”: (i)that are made available, communicated or released by, or on behalf of, the disclosing Party to the other Party (“receiving Party”) or to the receiving Party’s Personnel, Affiliates and Contractors or other persons who are receiving such Materials on the receiving Party’s behalf (whether during or prior to the term of this Agreement) under, for the purpose in connection with or as a result of this Agreement; and (ii) that are obtained by the receiving Party or the receiving Party’s Personnel, Affiliates and Contractors or other persons who are obtaining such Materials on the receiving Party’s behalf (whether during or prior to the term of this Agreement) relating to the disclosing Party’s business, Personnel, Affiliates and Contractors, customers and/or operations under, for the purpose in connection with or as a result of this Agreement. Not with standing anything contained herein, the disclosing Party’s Confidential Information shall exclude any Material that:
(a) is already known to the receiving Party or in its possession before the disclosure hereunder free of any obligation to keep it confidential;
(b) is or becomes publicly known through no wrongful act or default of the receiving Party;
(c) is received by the receiving Party from a source other than the disclosing Party or the disclosing Party’s Personnel, Affiliates and Contractors acting on the disclosing Party’s behalf for the purpose of or under this Agreement provided that such Materials are not then (in the reasonable knowledge of the receiving Party) subject to any agreement or other duties relating to confidentiality; or
(d) is independently developed by the receiving Party.
15.2 For the avoidance of doubt and without limiting the generality of the foregoing, MIMZY’s Confidential Information shall include without limitation technical information, data, know-how, and Materials relating to MIMZY's and/or its affiliates’ business, operations, trade secrets, financial information and condition, marketing strategies and any other information that is by its nature confidential and proprietary to MIMZY and/or its Personnel, Affiliates and Contractors.
15.3 Unless otherwise stated herein, the receiving Party shall not disclose, and shall procure its relevant Personnel, Affiliates and Contractors not to disclose,the disclosing Party’s Confidential Information to any person except: (a) to the relevant governmental or statutory authorities, officers or bodies or any other person to the extent required by any Applicable Laws; (b) to any relevant tribunals, court officers, parties and/or court to the extent necessary to resolve any disputes under this Agreement; (c) to any person expressly permitted under this Agreement; (d)to its relevant Personnel, Affiliates and Contractors who have a definite need to know such Confidential Information for the Permitted Purpose (in the event the receiving Party is the CUSTOMER) or the Provisioning of Services Purpose (in the event the receiving Party is MIMZY); and/or (e) to any person approved by the disclosing Party in writing (“Permitted Disclosure”). The receiving Party shall limit the disclosure of the disclosing Party’s Confidential Information and shall only disclose such part of the disclosing Party’s Confidential Information as may be necessary having regard to the purpose relating to the Permitted Disclosure
15.4 Subject to Sub-Clause 3 above and without limiting the generality of Clause 6 (Terms of Use of the Application and Customer Materials) (Clauses 6.3 – 6.6 in particular), the CUSTOMER shall ensure that the Users, its Personnel, Affiliates and Contractors,any third parties permitted by the CUSTOMER to have access to MIMZY’s Confidential Information and/or other third parties engaged by the CUSTOMER who may or will have access to MIMZY’s Confidential Information (“Recipients of MIMZY’s Confidential Information”) have been duly apprised of the requirements of this Clause 15 (Confidentiality) and are or will be bound to keep MIMZY’s Confidential Information confidential as required under this Agreement. The CUSTOMER shall be responsible and assume full liability for any acts and omission of any of the Recipients of MIMZY’s Confidential Information that would constitute a breach of this Agreement or any disclosure or use of MIMZY’s Confidential Information in a manner not permitted under this Agreement by any or all of the Recipients of MIMZY’s Confidential Information. If requested by MIMZY, the CUSTOMER shall ensure, and shall procure, that the relevant Recipients of MIMZY’s Confidential Information enter into a non-disclose or confidentiality agreement with MIMZY in respect of MIMZY’s Confidential Agreement on the terms no less stringent that the terms contained in this Clause 15 (Confidentiality).
15.5 This Clause 15 (Confidentiality) shall survive the termination or expiry of this Agreement for whatsoever reason.
16. TERMINATION AND SUSPENSION
16.1 Without prejudice to any other rights and remedies the terminating Party may have under this Agreement or at law, a Party may immediately terminate this Agreement by notice in writing if:
(a) the other Party is in breach of any of the terms and conditions contained in this Agreement and such breach is not remedied within thirty (30) days of the terminating Party's written notice;
(b) the other Party ceases to conduct, or threatens to cease conducting, its ordinary business; or
(c) (i) the other party shall pass a resolution for winding up or becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency or bankruptcy administration or proceedings; (ii) if a receiving order is made against the other Party; (iii) the other Party has a receiver or similar officer appointed over all or a substantial part of its assets; or (iv) the other Party makes any arrangement or composition with its creditors (other than relating to a solvent restructuring).
16.2 Without prejudice to any other rights and remedies MIMZY may have under this Agreement or at law, MIMZY shall be entitled to terminate this Agreement for convenience (with or without any reason) by giving the CUSTOMER at least one (1) month’s notice in advance.
16.3 Without prejudice to any other rights and remedies MIMZY may have under this Agreement or at law, MIMZY shall be entitled to immediately (with or without notice) suspend, restrict or cease the CUSTOMER’s access to and use of the Application in any of the following events:
(a) if the CUSTOMERisfound to be in breach of any of the terms and conditions contained in this Agreement or MIMZY has reason to suspect or believe that the CUSTOMER has committed such breach;
(b) if the CUSTOMER isinvolved in or attempting to carry out any fraudulent or unlawful activities;
(c) in the event of any violation, breach and/or non-observance of or non-compliance with any of the Relevant Terms by or on the part of any of the Users, the CUSTOMER’s Personnel, Affiliates and Contractors and/or the Recipients of MIMZY Materialsor MIMZY has reason to suspect or believe that there has been such violation, breach, non-observance or non-compliance; and/or
(d) in the event MIMZYis of reasonable opinion that the CUSTOMER’s use of the Application: (i) poses a security risk; or (ii) will cause disturbances to other users of the Application or otherwise interfere with or cause any disturbances to the provisioning of the application and/or services similar to the Application by MIMZY to its other customers.
16.4 Upon the occurrence of any of the risks, breaches or events listed in Sub-Clause 3 above, MIMZY shall be entitled (but not obliged) to carry out all necessary safety measures, investigation and steps to minimise, remedy or resolve such risks, breaches or events. MIMZY may refuse to restore the CUSTOMER’s access or lift the suspension until MIMZY receives an assurance from the CUSTOMER, in the format MIMZY deems acceptable, that the said risks, breaches or events will be fully eliminated, remedied and/or resolved and that the CUSTOMER will take all steps necessary to prevent the same from reoccurring. Without prejudice to any other rights and remedies MIMZY may have under this Agreement or at law, in the event that any suspension continues for a period of thirty (30) days or more, MIMZY shall be entitled to terminate this Agreement.
17. CONSEQUENCES OF TERMINATION
17.1 Upon termination or expiry of this Agreement and without prejudice to any other rights and remedies under this Agreement or at law or equity,
(a) all licences and rights granted by MIMZY under this Agreement shall immediately terminate and the CUSTOMER shall immediately cease to use the Application and any other MIMZY Materials; and
(b) MIMZY may (without prejudice to any other rights and remedies under this Agreement or at law or equity):
(i) retain any monies paid; and
(ii) charge for such part of the products and services in respect of which MIMZY has already rendered and which prices becomes payable by the CUSTOMER prior to such termination but the CUSTOMER has not yet made the corresponding payment.
17.2 Within thirty (30) days after the date of expiry, termination or discontinuance of this Agreement for whatever reason, MIMZY may expunge, destroy, remove and delete the CUSTOMER Data and Materials (including the Hosted Data)from or in its possession or system save and except that MIMZY may keep and maintain the information and/or records to the extent necessary for archival purposes or in order to comply with any Applicable Laws, established accounting principles and/or its reasonable internal retention policies. In the event that the CUSTOMER requires to retain any CUSTOMER Data and Materials for its own use, the CUSTOMER shall be responsible to download all such data within the said thirty (30) days. Unless otherwise agreed by MIMZY (subject to any additional fees as may be charged by MIMZY), MIMZY shall have no obligation to return or make available to the CUSTOMER any CUSTOMER Data and Materials processed by MIMZY under this Agreement upon expiry, termination or discontinuance of this Agreement for whatever reason.
18. FORCE MAJEURE
18.1 Neither Party shall be liable for any failure or breach of this Agreement arising from causes beyond its reasonable control including but not limited to acts of God, insurrection, civil disorder, war or military operations, national or local emergency, acts or omission of government or other governmental authorities, government restraints, pandemics and/or viral outbreaks, industrial disputes of any kind (whether or not involving any of the Parties employees provided that such disputes are not initiated or caused by the affected Party for the purposes of avoiding its obligations herein), fire, lightning, explosion, flood, landslides, subsidence, inclement weather, acts or omission of persons or bodies whom the affected Party is not responsible for or any other cause whether similar or dissimilar outside the affected Party’s reasonable control (each a “Force Majeure Event”) to the extent that such failure or breach is caused by the Force Majeure Event.
19. LINKS TO THIRD PARTY SITES
19.1 Where the Application contains links to third party sites and to resources provided by third parties (“Third Party Sites”), those Third Party Sites are merely linked to provide information only and are solely for the CUSTOMER’s convenience. MIMZY has no control over and assumes no responsibility for the Materials contained in or on such Third Party Sites. MIMZY shall not be held responsible or liable in any manner whatsoever for any loss and/or damage that may arise from the CUSTOMER’s use of theThird Party Sites. If the CUSTOMER accesses any of the ThirdParty Sites, the CUSTOMER hereby agrees to do so entirely at the CUSTOMER’s own risk. The CUSTOMER acknowledges and accepts sole responsibility for and assumes all risk arising from access to, use of or reliance upon the Third Party Sites and/or any Materials contained in or on the Third Party Sites.
20. PUBLICITY
20.1 No publicity of any kind in relation to any matter in connection with this Agreement shall be made by the CUSTOMER other than in accordance with this Clause 20 (Publicity). All media releases, public announcements and public disclosures by the CUSTOMER relating to this Agreement or its subject matter shall be coordinated with MIMZY and subject to the MIMZY’s prior written approval.
21. COMPLETE AGREEMENT
21.1 This Agreement (together with any documents referred to herein) constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any prior agreements, understandings or arrangements between the Parties, whether oral or in writing relating to the subject matter hereof and no representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to this Agreement except as set out in this Agreement.
22. VARIATION
22.1 Subject to Sub-Clause 2 below, all other addition, amendment, modification and/or variations shall be made in writing and signed by an authorized representative of each Party.
22.2 MIMZY shall have the right at any time to add, delete, amend or modify this Agreement and/or the Application, or any part thereof, from time to time in a manner which may not adversely and materially affect the CUSTOMER’s use of the SaaS Services. Such addition, deletion, amendment or modification shall be effective immediately upon notice thereof, which may be given by means of, including, but not limited to, posting on the Application, or by electronic or conventional mail, or by any other means by which the CUSTOMER obtains notice thereof. The CUSTOMER shall immediately notify MIMZY in the event that the CUSTOMER is not agreeable to any such addition, deletion, amendment or modification, in which case MIMZY shall be entitled to terminate this Agreement. Any use of the Application by the CUSTOMER after the issuance of such notice shall be deemed to constitute the CUSTOMER”s acceptance of this Agreement with such addition, deletion, amendment or modification.
23. BINDING EFFECT
23.1 This Agreement shall be binding upon the Parties hereto, and inure to the benefit of MIMZY and the CUSTOMER and their respective assigns and successors including their liquidators and/or receivers.
24. ASSIGNABILITY AND SUBCONTRACT
24.1 The CUSTOMER shall not, without the prior written consent of MIMZY, assign, transfer, charge, novate, sub-contract or deal in any other manner with all or any of its rights, benefits, obligations and/or duties under this Agreement. MIMZY shall be entitled to assign, transfer,novate and/or sub-contract any of its rights, benefits, obligations and/or duties under this Agreement to its affiliates or a third party in connection with a corporate restructuring exercise.
25. GOVERNING LAW
25.1 This Agreement shall be governed by, construed and enforced under the laws of Malaysia and the courts of Malaysia shall have exclusive jurisdiction hereto.
26. SEVERABILITY
26.1 Any term, condition, stipulation, provision, covenant or undertaking (“Provision”, and any reference to Provision shall include any part thereof) contained in this Agreement which is illegal, invalid or unenforceable shall, to the maximum extent possible, continue to apply with the necessary modification in order that the Provision is legal, valid and enforceable provision which most closely reflects the original Provision. Subject to the foregoing, any Provision which is illegal, invalid or unenforceable shall be fully severable and ineffective to the extent of such illegality, invalidity or unenforceability without invalidating the remaining Provisions contained in this Agreement (such remaining Provisions shall remain in full force and effect).
27. NOTICES
27.1 Except as otherwise agreed or provided in this Agreement, all notices and other communications to be given by a Party to the other Party under this Agreement shall be in writing and shall be valid and sufficient if dispatched or sent in the following manner:
If by MIMZY to the CUSTOMER
(a) by hand, registered post, courier or other registered postal service to the CUSTOMER’s address in MIMZY’s record;
(b) by posting, publishing or sending a notification on or through the Application; or
(c) by email to the email address provided by the CUSTOMER to MIMZY;
If by the CUSTOMER to MIMZY
(d) by hand, registered post, courier or other registered postal service to: or
Attention:
Correspondence Address:
No. 40 Jalan Penchala, 56050 Petaling Jaya, Selangor.
(e) by email to customerservice@mimzyonline.com
27.2 Notices shall be deemed to have been served (a) if delivered personally, the next business day after it has been delivered; (b) if sent by registered postal service or courier, three (3) business days after dispatch; (c) if sent by e-mail, upon successful delivery of the email and recorded as a sent email; (d) if sent by way of posting, publishing or sending a notification, on or through the Application, immediately upon it being successfully posted, published or sent.
27.3 If deemed service or receipt under Sub-Clause 2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), such notice is deemed to have been served or received when business next starts in the place of receipt
28. WAIVER
28.1 No failure or delay on the part of a Party in exercising any rights or remedies under this Agreement at any time or for any period of time shall operate as or be deemed to be a waiver thereof or otherwise diminish or affect the Party’s other rights and remedies under this Agreement. Any knowledge or acquiescence by a Party of, or in, any breach of any provision of this Agreement shall not operate as or be deemed to be a waiver. No single or partial exercise of any rights or remedies by a Party shall affect the other rights or remedies the Party may have under this Agreement. A waiver by a Party of any breach shall not constitute a continuing waiver in respect of any subsequent or continuing breach. A provision of right or remedy under this Agreement may not be waived except in writing signed by the Party so waiving.
29. AGREEMENT TO REMAIN BINDING
29.1 This Agreement shall continue to be valid notwithstanding any changes in the Parties whether in name, style, constitution or composition.
30. COSTS
30.1 Each Party shall bear its own costs incurred in the preparation of this Agreement (including but not limited to legal expenses) and the CUSTOMER shall pay for the applicable stamp duty.
31. SURVIVAL OF PROVISIONS
31.1 The Provisions contained in this Agreement which are: (i) expressed to survive the termination or expiration of this Agreement; or (ii) capable of having effect and which by their nature, sense and context are intended to survive the termination or expiration of this Agreement, shall remain in full force and effect following the termination or expiration of this Agreement.
32. NO AGENCY AND NO PARTNERSHIP
32.1 No Party shall hold itself out to be the principal or agent of the other Party for any purpose and under any circumstances. Nothing herein contained shall create or imply a partnership between the Parties. No Party has any authority to act, make representations or bind or contract on behalf of the other Party.
33. INTERPRETATION
33.1 In this Agreement, unless the context otherwise requires:
(a) words denoting the singular include the plural and vice-versa;
(b) words denoting any gender (masculine feminine neuter or otherwise genders) include all other genders;
(c) references to a person shall be construed so as to include any individual, firm, body corporate (wherever incorporated), government, state, agency of a state, joint venture, association, partnership, and/or other bodies (whether or not having separate legal personality);
(d) reference to any Clause, Sub-Clause, Schedule (if any) and/or Appendix (if any) is to a clause, sub-clause, schedule and/or appendix to or of this Agreement. Reference to a Clause shall include its Sub-Clauses;
(e) headings of this Agreement are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
(f) where a word or a phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(g) any reference to any party to this Agreement or any other agreement or instrument shall include that party's successors, permitted nominees and assigns (and where applicable, the party’s personal representatives);
(h) any reference to this Agreement or any other agreement, document or instrument shall be construed as a reference to this Agreement or, as the case may be, such other agreement, document or instrument as the same may have been or may from time to time be amended, varied, novated, replaced or supplemented from time to time;
(i) references to any legislation, statutory provision and/or law shall include any subsidiary legislation, guidelines, rulings, legal requirements and/or regulations made in pursuance thereof (“Law”) and any amendment, substitution, re-enactment, modification and/or replacement (“Modification”) made in relation to the Law from time to time whether before or after the date of this Agreement so far as such Modification applies or is capable of applying and shall, so far as liability thereunder may exist or can arise, include also any past legislation, statutory provision and/or law (including any subsidiary legislation, guidelines, rulings, legal requirements and/or regulations made in pursuance thereof) as from time to time modified or re-enacted which such Law has directly or indirectly replaced;
(j) the words "hereof", "herein", "hereon" and "hereunder" and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement;
(k) any reference to proceedings includes litigation, arbitration or investigation. A reference to a judgement includes an order, injunction, decree, determination or award of any court or tribunal;
(l) if an event or act must occur or be done on a stipulated day which is not a business day then the stipulated day will be taken to be the next business day;
(m) any examples introduced by the words “including”, “includes”, “in particular” or “for example”, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words and are not intended to be interpreted as words of limitations; and
(n) no rule of construction or interpretation applies to the disadvantage or detriment of the Party having control or being responsible for the preparation of this Agreement.