GOGOPASS ASIA SDN BHD TERMS OF SERVICE AGREEMENT

  1. GoGoPass Asia Sdn Bhd (Reg: 1211142-A)– a company incorporated under the law of Malaysia with its registered office at D-06-07, Sunway Nexis, No.1, Jalan PJU 5/1, Kota Damansara, 47810 Petaling Jaya. (“GGP”)

PURPOSE OF THE AGREEMENT:

  1. COMPANY is in the business of operating Retail service through its outlets and brand which provides products, sales of produces, services and or physical or non physical products and other services relating to the brand / outlet, as made available by COMPANY from time to time;

Description and details of the services are set forth separate in an Appendix A for confirmation.
NOW IT IS HEREBY AGREED as follows: –

1. Definitions

1.1 In this Agreement (including the Annexes hereto), unless the context otherwise requires:

“Affiliated Company” means any corporation or other legal entity in which either Party hereto have an interest which secure 50% or more of the owner’s accumulated voting power.  It shall also mean any corporation or legal entity in which the parent of either Party hereto either solely or jointly with one or more affiliated companies control 50% or more of the owner’s accumulated voting power.
“Promotion Services” means the services provided by GGP to COMPANY pursuant to Clause 2 below.
“Confidential Information” means proprietary and other valuable information, regardless of form, communicated by one Party to the other Party, including, without limitation, technical or non-technical information, trade secrets, know how, specifications, financial and pricing information, market research, drawing, calculations, manufacturing data, specifications, test information, formulas and the terms of this Agreement.
“Effective Date” means the date of this Agreement.
“Intellectual Property Rights” means all patents, trademarks and service marks, registered designs, design rights and copyright, rights in databases and other protectable lists of information, rights in confidential information, trade secrets, inventions and know-how, trade and business names, domain names, and logos in each case whether registered or unregistered and applications for any of them and the goodwill attaching to any of them and any rights or forms of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world.
“GGP Property” means the GGP’s websites, networks, social networking applications, services, mobile applications and/or other products of GGP, GGP trademarks and service marks, and GGP’s proprietary technology and any related intellectual property rights throughout the world owned by GGP or licensed to GGP from a third party, and also including any derivatives, improvements, enhancements or extensions of GGP Property conceived, reduced to practice, or developed by any party, incorporated into or embodied by any of the foregoing or used in connection with the rendering of the GGP Promotion Services and or Co Brand Prepaid card Services.
“Mobile Payment Platform” means a mobile payment platform provider for merchants, enabling mobile phone subscribers/end-users to purchase products and services, directly from the merchants, without credit cards, by directly debiting their “Co Brand Wegomy.biz” account’s wallet, through credit card payment gateway, direct bank payment gateway, or any other  billing solutions tied up with “co—brand Wegomy.biz”.
“Commission” means the fee payable by COMPANY to GGP in consideration for the Promotion Services for the purchase of goods, products or services through payment gateways and are payable by COMPANY in the manner set forth in Clause 3 below.
“Service Fee” means the fee payable by COMPANY to GGP in consideration for the setup and maintenance of Collection Services for the purchase goods, products or services GGP solutions and are payable by COMPANY in the manner set forth in Clause 3 below.

1.2 In this Agreement, unless the context otherwise requires:

  1. the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
  2. the singular includes the plural and vice versa;
  3. references to persons include individuals, partnerships, associations and bodies corporate;
  4. references to a gender include references to any other gender as the context requires;
  5. a reference to a Clause, APPENDIX or Schedule is a reference to a Clause, APPENDIX or Schedule of this Agreement;
  6. “in writing” means any communication in any written form or means, including e-mail, facsimile transmission and traditional paper form; and
  7. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2. Promotion Services

2.1 COMPANY hereby engages GGP to carry out the Promotion Services for COMPANY, and GGP accepts the engagement on the terms and conditions set out herein.

2.2 The COMPANY accepts that the Collection Services provided by GGP is only for goods , products and services owned and operated by the COMPANY and or its affiliates.

2.3 GGP shall provide COMPANY with all assistance necessary for the integration of GGP’s Promotions Services platform and/or billing systems in order for COMPANY to accept and track payment for the payment collection services.

2.4 GGP shall generate a copy of the monthly revenue reports (“Monthly Report(s)”) , at Wegomy.biz. In the event COMPANY requires the Monthly Report(s) for more than three (3) calendar months, COMPANY shall submit a written request to GGP to furnish the preceding months’ Monthly Report(s).

2.5 GGP shall monitor any sales from end-users of the Co Brand wallet on behalf of COMPANY from the Permitted Territories for the purchase of goods/ products and services from COMPANY by GGP Services Platform corresponding to the Retail Price of such purchases as set out in APPENDIX A to this Agreement and invoice company for the Promotion fee.

2.6 The amounts received by COMPANY from any such end-user in relation to the purchase of Company Goods, Products related to the promotion of GGP, of shall be deemed to have been collected by COMPANY from such end-user through its banking and or credict card, Mastercard, Visa card provider  of the COMPANY (the aggregate of such amounts collected by by COMPANY shall be referred to as the “Collected Revenue”).

2.7 COMPANY shall pay the commission of the Collected Revenue to GGP on a 7 working days basis upon receiving the settlement report of sales concluded, subject to GGP’s entitlement to deduct the Service Fee for sales of the Co brand for purchases of goods , products and services by end-users.

3. Financial Terms

3.1 The Service Fee that GGP shall be entitled to, in consideration of the Promotions services for the Co brand wallet and Social marketing shall be as described selected rate card list in Appendix A below, of the Collected Sales from the Platform  in the Permitted Territories.

3.2 The Fee’s that GGP shall be entitled to, in consideration of the Promotion Services for the COMPANY shall be as per APPENDIX A

3.3 The Service Fee shall commence on the Effective Date and shall remain in force for one (1) year from the Effective Date without any further amendment. In the event the COMPANY wishes to amend the Service Fee in the following years, the COMPANY shall obtain written approval from GGP by giving thirty (30) days written notice of the amended Service Fee failing which, the Service Fee stated in Clause 3.1 shall remain in force.

3.4 If COMPANY uses GGP Other Financial Services, within five (5) business days after the end of each calendar month following the Effective Date, COMPANY shall issue GGP with an invoice specifying the Collected Revenue for the preceding calendar month. GGP shall review and confirm the invoice with COMPANY and subsequently pay to the COMPANY within twenty one (21) days from the receipt of the invoice.  In the event, there is a dispute in the amount that stated in the invoice, both Parties shall use its best effort to reconcile the disputed amount and agree on a settlement.

3.5 If COMPANY distributes GGP Co brand on consignment terms, within five (5) business days after the end of each calendar month following the Effective Date, GGP shall furnish COMPANY with a copy of Monthly Report specifying the Collected Revenue for the preceding calendar month. COMPANY shall review and confirm the report with GGP and subsequently issue GGP with an invoice for the monthly Collected sales commissions  within five (5) business day. GGP shall pay upon receipt of COMPANY’s invoice for the same within twenty one (21) days for company’s part in the distribution of the co brand card Refer APPENDIX B.

3.6 All fees payable hereunder are exclusive of any taxes, assessments or duties that may be assessed upon GGP or the Promotion Services performed under this Agreement, including, without limitation, sales, excise, value added, personal property, electronic/internet commerce, export, import and withholding taxes.  Both Parties shall, if any such taxes are assessed against it, directly pay the taxes to the relevant regulatory body. 

3.7 COMPANY Shall will make payments to GGP by way of Telegraphic Transfer into a bank account designated by GGP as per APPENDIX A, or in any other means as COMPANY may notify to GGP in writing from time to time. For avoidance of doubt, any bank charges arising out of any payment transfer made by COMPANY to GGP shall be borne by COMPANY, and any bank charges arising out of any payment receive by COMPANY from GGP shall be borne by GGP.

3.8 All payments made to GGP pursuant to this Agreement shall be in Ringgit Malaysia / US Dollars.  The exchange rate for all payments made shall be the inter-bank exchange rate, as published by http://www.maybank2u.com.my/.

4. Representations and Warranties
Both Parties represents and warrants to the other that, as from the date hereof and at all times during the continuance of this Agreement:

  1. it is a company duly constituted, properly incorporated and is validly existing under the laws of the country of incorporation;
  2. it has taken all corporate and other action required to authorize the execution, delivery and performance of this Agreement and the Agreement is binding upon and enforceable against it in accordance with its terms;
  3. it has obtained all approvals required from any government, tax, monetary or other authority to enable it to comply with the provisions of this Agreement and make payment as specified, and all approvals are in full force and effect;
  4. the compliance with the provisions of this Agreement will not violate any other agreement to which it is a party;
  5. it is not a subject of any actual, pending or threatened legal proceedings which has or may have a material adverse effect on its financial conditions; and
  6. it has taken no corporate action, nor has any other steps been taken or legal proceedings started or threatened against it for its winding up, dissolution or for the appointment or a receiver, administrator, trustee or similar officer of it or any or all of its assets and undertakings;

5. Confidentiality

5.1 Subject to Clause 5.3, both Parties agree to maintain in strict confidence all Confidential Information. Both Parties shall not, without the prior written consent of the other:

  1. use any portion of such Confidential Information for any purpose other than the performance of its obligations under this Agreement;
  2. disclose any portion of such Confidential Information to any person or entity other than the officers, employees, agents or contractors of such Party and its Affiliates who reasonably need to have access to the Confidential Information for the performance of its obligations under this Agreement; or
  3. duplicate or modify any portion of such Confidential Information.  For the avoidance of doubt, any duplicate or modification of any portion of such Confidential Information shall likewise be regarded as Confidential Information.

5.2 Subject to Clause 5.4, in the event that the Parties discloses Confidential Information pursuant to this Clause 7, the Party responsible for disclosing the Confidential Information shall procure that the recipient of the Confidential Information is bound by the same obligations of confidentiality as the Parties in this Agreement.
5.3 Subject to Clause 5.4, the obligations of both Parties with respect to Confidential Information shall survive the termination of this Agreement, except to the extent that:

  1. such Confidential Information becomes generally available to the public other than as a result of unauthorized disclosure by either Party or persons to whom either Party has made the information available;
  2. such Confidential Information has been released by either Party to another person or entity without restriction;
  3. Both Parties can demonstrate that such Confidential Information was received by it on a non-confidential basis, prior to receipt from either Party, from a third party lawfully possessing and lawfully entitled to disclose such information; or
  4. such Confidential Information is required to be released by law, pursuant to a court order or an administrative proceeding, or by another appropriate regulatory body.

5.4 Upon the termination of this Agreement, both Parties shall either (i) return such Confidential Information to each other; or (ii) dispose of or destroy such Confidential Information in accordance with the other Parties instruction.
5.5 Breach of any part of this Clause 5 shall be deemed a material breach of this Agreement that shall allow either Party to terminate this Agreement immediately without any notice to each other pursuant to Clause 6.3(a) of this Agreement.

6. Term and Termination

6.1 Subject to the rights of both Parties to terminate this Agreement as set out below, this Agreement shall commence on the Effective Date and shall remain in force for one (1) year from the Effective Date (the “Term”), after which this Agreement shall be deemed to have renewed automatically.

6.2 Either Party may terminate this Agreement at any time without cause upon thirty (30) days prior written notice to each other.

6.3 Without prejudice to Clause 6.2 above, either Party may terminate all or part of this Agreement with immediate effect without giving notice for any one or more of the following reasons:

  1. if any of the Party has committed a material breach of any provision of this Agreement;
  2. if in the sole opinion of one Party, the other Party has breached any of the terms or conditions of this Agreement and the other Party fails to remedy such breach within thirty (30) days of a written request from one Party to the other Party to remedy such breach;
  3. if one Party has at any time provided any false or incomplete information to the other Party;
  4. if in the opinion of one Party or any regulatory authority, it is not in the public interest to continue providing the other Party’s product and service for any reason whatsoever;
  5. if, in one Party’s sole opinion, the other Party’s association with the third party and/or the any project arising out of this Agreement may have an adverse effect on one Party’s reputation and/or commercial interests;
  6. if, in one Party’s sole opinion, any material circumstances arise such that it is impossible for either Party to properly discharge its obligations herein;
  7. if either Party enters into any compromise or arrangement with its creditors or a receiver is validly appointed over the whole or part of the undertaking of either Party or proceedings are taken for the appointment of an administrator of or the winding up of either Party or either Party becomes insolvent or ceases to carry on business or if the effective control of either Party comes or is likely to come into the possession of a competitor of either Party; or
  8. if in one Party’s sole opinion, the other Party has behaved unreasonably and in such a way that hinders one Party in the proper discharge of its obligations herein and/or one Party’s business operations.

6.4 Upon termination of this Agreement pursuant to Clause 6.2, both Parties shall have no further obligations to each other than the survival clauses.

7. Intellectual Property Rights

7.1 In the event either Party requires the use of any Intellectual Property Rights owned by the other Party during the Term of this Agreement, either Party shall obtain the prior written consent of the other Party before using such Intellectual Property Rights.   Both Parties shall retain full ownership of such Intellectual Property Rights and shall not be construed to have assigned or licensed such Intellectual Property Rights to the other Party.

7.2 COMPANY is obliged to display GGP’s logo in its portal. However, the logo shall not be used in any manner which is deceptive or which would bring disrepute to GGP. Except as provided above, upon termination of this Agreement, COMPANY shall no longer use the logo or any logo similar to that of GGP’s. This clause shall survive the termination of the Agreement.

8. Disclaimers and Limitations
BOTH PARTIES DOES NOT MAKE AND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS WITH RESPECT TO THE PRODUCTS AND SERVICES.  FURTHER, BOTH PARTIES DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE PRODUCTS OR SERVICES.

9. Limitation of Liability and Indemnification

9.1 NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, NEITHER PARTIES NOR ITS OFFICERS, DIRECTORS, AGENTS, SHAREHOLDERS, EMPLOYEES, LICENSORS, REPRESENTATIVES, OR RESELLERS SHALL BE LIABLE WITH RESPECT TO ANY CONTRACT, TORT, OR OTHER LEGAL OR EQUITABLE THEORY: FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCURRED AS A RESULT OF LOST TIME, LOST SAVINGS, LOST DATA, LOST GOODWILL, OR LOST PROFITS, OR FOR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY damage OR HARM suffered by LICENSEE or third party caused directly or indirectly by EITHER PARTY, including WITHOUT LIMITATION personal injury and/or property damage, EVEN IF bOTH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH OCCURRING.

9.2 In no event shall either Parties total accumulated liability under to this Agreement and any applicable law exceed 5% (five percent) of the aggregate amount paid by COMPANY to GGP for the three (3) months preceding any claim for liability, irrespective of the nature or kind of such liability.

9.3 Each Party shall, at its sole cost and expense, indemnify, defend and hold harmless the other Party and its affiliates, officers, directors, shareholders, agents and employees from all claims, suits, actions, demands, damages, liabilities, expenses (including reasonable fees and disbursements of counsel), judgments, settlements and penalties of every kind (collectively “Losses”) to the extent resulting from, arising out of or incurred in connection with any suit, action, demand or other claim by a third Party (including any end-users of each Party) to the extent that such Losses are caused by:

  1. any breach by either Party of any representation, warranty, covenant, agreement or other obligation contained herein; or
  2. the negligent or intentionally wrongful acts or omissions of either Party, its employees, agents, subcontractors or other representatives of either Party.

9.4 Each Party has a duty to mitigate any damages and/or expenses that would otherwise be recoverable from the other Party pursuant to this Agreement by taking appropriate and commercially reasonable actions to reduce or limit the amount of such damages.

10. Assignment
Both Parties may not assign, pledge, mortgage, sub-license or sub-contract any portion of this Agreement or any of its rights derived under this Agreement (including, without limitation, the Licenses) without prior written consent of the other Party which may not be unreasonably withheld. 

11. Severability
Should a provision be declared illegal or unenforceable, it shall be eliminated or replaced to preserve, wherever possible, the Parties’ intent; all other provisions shall remain in force.

12. Non-solicitation of employees
Both Parties undertake that it will not for the term of this Agreement and a period of twelve (12) months thereafter on its own behalf or on behalf of any person directly or indirectly canvass, solicit or attempt to entice away from either Party or an associated company any person who has at any time during the term of this Agreement been employed or engaged by either Party or an associated company.

13. Independent Parties
The Parties are independent entities.  Nothing in this Agreement creates or implies any employment, agency or other legal relationship.  Neither Party has the right or authority to bind the other.

14. Entire Agreement
This Agreement constitutes the entire agreement between the Parties as to the subject matter hereof and supersedes all prior and contemporaneous communications and agreements, written or oral, relating to such subject.  Amendments shall be in writing and executed by each Party. Waiver of performance required by this Agreement shall not constitute a subsequent waiver, unless so waived in writing.

15. Waiver
The rights and remedies of the Parties are cumulative and not alternative.  Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.  To the maximum extent permitted by applicable law, (i) no claim or right arising out of this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Party; (ii) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one Party  will be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement.

16. Force Majeure
Neither Party shall have any liability for any delay or default in its obligations under this Agreement caused by circumstances beyond its control including without limitation acts of God, acts of the public enemy, decrees or restraints by governmental authorities, computer or utilities failure, strikes, war, riots, insurrections, civil commotion, acts of terrorism and other causes of such nature and acts or omissions of other providers of telecommunications services. In any of the events mentioned above, both Parties shall for the duration of such event be relieved of any such obligation under this Agreement as is affected by the said event; provided that:

  1. the provisions of this Agreement shall remain in force with regard to all other obligations under this Agreement which are not affected by such event; and
  2. each Party shall resume its full obligations under this Agreement upon it becoming aware or notified of the cessation of such event.

17. Notices

17.1 All notices, demands, requests or communications given pursuant to or in connection with this Agreement shall be given in the English language and sent via telefax, first class prepaid airmail or by hand to the addresses and telefax of the Parties as follows:
If to GGP:                   GOGOPASS ASIA Sdn. Bhd. (1211142-A)
D-06-07, Sunway Nexis, No.1, Jalan PJU 5/1, Kota Damansara, 47810 Petaling Jaya, Malaysia. Tel: +6019 376 9709
Attention: Director

17.2 All communications shall be effective on receipt, and shall be deemed to have been received, in the case of a registered letter, not later than fifteen days (15) after having been posted; if by hand, when receipt is signed by a company representative; and in the case of a telefax, when it has been sent and a confirmation of receipt is obtained, except that the telefax is sent after normal office hours or on a day which is not a business day shall be deemed to have been received on the succeeding business day. Notice sent via email or any other means shall not be acceptable.

17.3 Each Party may designate by reasonable prior written notice a new address to which any notice, demand, request or communication may thereafter be so given.

18. Governing Law
This Agreement will be interpreted and construed in accordance with the laws of Malaysia, without regard to conflict of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the courts in Malaysia, and each Party hereby submits to the personal jurisdiction thereof.

19. Compliance with Laws
Both Parties shall, at all times, comply with all applicable laws, regulations and similar rules.  Both Parties shall obtain and maintain any and all permits, licenses, authorizations, and/or certificates which may be required in connection with the Collection Services as may be required by any legitimate government authority, agency or subdivision thereof.

20. No Third-Party Rights
Nothing in this Agreement is intended to confer upon any party who is not a party hereto (a “Third Party“) any right to enforce any provision herein and the Parties hereto do not intend any term (whether it purports to confer a benefit on a Third Party or not) of this Agreement to be enforceable by any such Third Party. No consent of any Third Party is required for any variation (including any release or compromise of any liability) or termination of this Agreement.