SmartDrive Aware Partner Service Agreement

Effective Date: 1st Feb 2021

Purpose

This Agreement is attached to the "SmartDrive Aware Application and Contract Form" (hereinafter referred to as the "Application Form"). This Agreement (which holds the same meaning as the "Agreement" set forth in the Application Form) shall be entered into between the Company and the Partner. The purpose of this Agreement is to establish the rights and obligations between the parties regarding the provision of the Platform Service (as defined in Clause 2) by the Company to the Partner. This Agreement shall apply to all legal relationships between the Company and the Partner regarding the provision of the Platform Service as the master agreement.

Definition

The following terms used in this Agreement shall have the meanings set forth below: “Agreement Period” means period which is described in the Application Form.

“End User” means any individual who uses the Service.

“Intellectual Property Rights”means all applicable rights, titles, interests and benefits thereto including, without limitation, patents, copyrights, trademarks, trade secrets, trade names, logos, inventions, registered and unregistered design rights, databases, database rights and all other similar intellectual property rights.

“Platform”means the SmartDrive Aware platform, which is a platform that provides telematics services to the End Users.

“Platform Service”means the services provided by the Company to the Partners as set forth in the Application Form.

“Points”means points that can be earned by the End Users for goods and other benefits.

“Service”means the services provided by the Company to the End Users using the Platform.

References to any gender shall include the other genders and references to the singular shall include the plural and vice versa and references to natural persons shall include bodies corporate and vice versa.

Any reference to a “party” is to a party to this Agreement, and “parties” shall be construed accordingly.

Provision of the Platform Service

The Company shall provide the Platform Service to the Partner during the Agreement Period on an “as is, where is” basis.

Consideration

In consideration of the Company providing the Platform Service, the Partner shall pay the Company the usage fee set forth in the Application Form (the "Usage Fee").
The Partner shall pay the Usage Fee together with the Sales and Service Tax (SST) or any other applicable taxes by the remittance method to the designated bank account by the payment date indicated in the Application Form. The bank transfer fee and other expenses required for the payment shall be borne by the Partner.
If the Partner fails to pay the Usage Fee by the indicated payment date, the Partner must pay a late payment interest fee at the rate of 8% per annum, to be calculated on a daily basis, from the next day following the date of the outstanding payment until the date of actual payment of the entire unpaid portion of the Usage Fee.

Intellectual Property Rights

All Intellectual Property Rights related to the Platform (including Intellectual Property Rights arising out of the provision of the Platform Service by the Company) shall belong to the Company or a third party who has granted the rights to the Company. The Partner shall not, for any reason, contest the validity and ownership of the Intellectual Property Rights relating to the Platform to the Company or any third party who has granted the rights to the Company.
The Partner will only be granted the non-exclusive right to use the Platform Service under Clause 3 in accordance with this Agreement, and will not receive any transfer of Intellectual Property Rights relating to the Platform.
The Partner shall not copy, modify, or otherwise infringe any Intellectual Property Rights (including, but not limited to, disassembly, decomplication, and reverse engineering) of all or part of the Platform.

Suspension of the Platform Service

The Company shall be able to suspend all or part of the use of the Platform Service or the Service without prior notification to the Partners in any of the following cases:
1. during inspection, upgrade or maintenance of the computer system related to the Platform Service or the Service (which may be performed at any time);
2. the occurrence of technical error to the system which affects the Platform Service or the Service;
3. due to a Force Majeure event; or
4. when the Company determines that such suspension or interruption of the Platform Service or the Service is necessary.
The Company shall not be liable for any losses or damages suffered or incurred by the Partner as a result of the measures taken by the Company under this clause.

Agreement to the Terms of Service by the End User

The Partner acknowledges and agrees that the provision of the Service to the End User is conditional on the End User agreeing to the Terms of Service which is set out in the Service Agreement between the Company and the End User.

Point Grant in The Service

The conditions for exchanging the Points awarded to the End User in the Service shall be in accordance with the provisions of this Agreement. The Company shall notify the contents of the exchange conditions to the Partner in advance, and shall notify the Partner in advance if the contents are changed.

Handling of Personal Data of End Users

For the purpose of this clause, “Personal Data” shall have the same definition as set out in the Personal Data Protection Act 2010.
The Partner agrees and acknowledges that in the event the Company requires to identify the End Users upon using the Service or to confirm the contact information of such End Users, the Company has the right to obtain any Personal Data including but not limited to the name, date of birth, address and telephone number of the End Users. For more information on the handling of Personal Data, please see the Company’s Privacy Policy (available on the Company’s website and the mobile application).
The Partner shall properly handle any Personal Data of the End Users provided by the Company in accordance with the Company’s Privacy Policy and the Personal Data Protection Act 2010.

Measurement of Data

The Partner agrees and acknowledges that by using the Service, information about the End User’s vehicle such as the driving condition of the vehicle (including but not limited to the speed, fuel efficiency, driving route, and other similar information) will be provided to the Company.
The Company shall anonymize information obtained in accordance with the preceding clause and other data obtained from the Service so that it cannot identify any specific individual, and shall not disclose such information to other unauthorized third party or for any purposes other than those stated in this Agreement and the Company’s Privacy Policy.

Dispute Settlement

The Partner shall notify the Company in writing without delay if any claims for damages are brought by the End User or any other third parties regarding defects or rights with respect to the Service or the Platform Service and the Partner shall act in good faith and serve as the contact person for any such person who makes such claims.
The Company shall not be held responsible for any improper or invalid or materially incorrect explanation of the Service by the Partner to the End User; any dispute arising out of this Agreement; or any other claims or disputes based on the relationship between the Partner and the End Users. In the event the Company is forced to compensate the End User with any damages due to such claims or disputes, the Partner shall indemnify the Company and shall reimburse the Company for all such damages including all costs and expenses incurred in connection with such claims and disputes.

Validity Period

The validity period of this Agreement shall be the same as the Agreement Period described in the Application Form.

Termination

Either party to this Agreement may immediately terminate this Agreement by notifying the other party in writing if any of the following occurs:
1. if a party breaches the Application Form or this Agreement and that particular breach (if capable of being rectified) is not rectified by the party within fifteen (15) days after receiving notice to rectify the breach;
2. when a party goes into liquidation, whether compulsory or voluntary (except for the purposes of a bona fide merger, reconstruction or amalgamation) or becomes insolvent;
3. when the suspension of business or cancellation of business license or business registration is received from any governmental authority;
4. when a party’s assets and credit conditions have materially deteriorated; or
5. when it becomes impossible to perform the Services or the Platform Service due to a Force Majeure event.
The rights conferred upon the parties under Clause 13.1 is in addition to and without prejudice to any other rights or remedies of the parties under this Agreement and failure to exercise it shall not constitute a waiver of any such rights and remedies.
In the event this Agreement is terminated pursuant to Clause 13.1, the Partner shall be obligated to pay the Usage Fee that is due, and the Company will not refund the previously paid Usage Fee.

Post-Termination

The Partner agrees and acknowledges that in the event this Agreement is terminated or has expired, the Partner shall cease all use of the Platform Service. The Company shall not be liable for any losses or damages or any other liability for any damages suffered or incurred by the Partner as a result of the inability of the Partner to use the Platform Service following the termination or expiration of this Agreement.

Disclaimer of Warranty

To the maximum extent permitted under the applicable law, the Company expressly disclaims all conditions and warranties, whether express, implied, statutory or otherwise, with respect to the use of the Platform Service or the Service.
Save for the losses or damages suffered or incurred by the party as a result of the Company’s wrongful act and/or gross negligence, the Company shall not be held liable for the following losses or damages suffered or incurred by the Partner in connection with the use of the Platform Service (including without limitation):
1. the Partner is not able to use the Platform Service due to a fault by the Partner; 15.1.2 damage caused to a third party by the Partner arising from the use of the Platform Service;
2. any lack of completeness, accuracy, certainty or usefulness of the information obtained through the Platform Service;
3. system interruptions, delays, suspensions, loss of data, unauthorized access to data, malfunctions of equipment, software and hardware used by Partner including but not limited to internet access lines and computers and other damage incurred by the Partner regarding the use of the Platform Service;
4. unstable Internet connection, unauthorized access, or connection fees charged by the Internet service provider company or various telecommunications carriers when using the Platform Service;
5. claims, disputes, claims for damages, etc., caused by server failures or other obstacles in using the Platform Service; or
6. claims, disputes, claims for damages, etc., caused by server failures or other obstacles in using the Platform Service; or
7. any other damages arising in connection with the use of the Platform Service.

Damages

Except as otherwise provided in this Agreement, each party's liability for this Agreement shall be limited to direct and ordinary damages, and shall not include indirect damages such as loss of profits and/or loss of business opportunities. The Company's liability is limited to the total amount of Usage Fees actually received from the Partner in the past three months from the date of the cause of the damages.

Force Majeure

Notwithstanding anything herein contained, none of the parties will be liable to the other party for any breach or failure to perform any of its obligations under this Agreement (except for payment of money) where such breach or failure is caused directly or indirectly by war, civil commotion, hostilities, strikes, lockouts, acts of God, pandemic, governmental regulations or directions or the action or omission or purported action or omission of any Governmental authority, or any other cause or causes beyond that party’s reasonable control, whether similar to any of the foregoing or not, but if any party is or is likely to be, affected by any such cause it will immediately notify the other party of the occurrence of the relevant event and will use all reasonable endeavors to overcome or mitigate the effects thereof. Each party’s obligations under this Agreement (except for payment of money) during the occurrence of the Force Majeure event shall be temporarily suspended.

Confidentiality

All information disclosed or communicated by one party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with this Agreement, shall be treated as confidential information unless the information:
1. is available to the public through no fault of the Receiving Party;
2. is, when it is supplied, already known to the Receiving Party without any obligation of confidentiality;
3. is independently obtained by the Receiving Party without any access to or use of the Disclosing Party’s confidential information; or
4. is required to be disclosed by law or by any court or tribunal with proper authority to order its disclosure (but only to the extent of such requirements).
Each party’s confidential information shall be held in strict confidence by the other party, using no lesser precautionary or security measures and degree of care as it uses to protect its own confidential information. The confidential information shall not be used, copied, reproduced, distributed or disclosed by the Receiving Party for any purpose except to its employees or agents on a need to know basis to implement or perform this Agreement provided its employees and agents are subject to the confidentiality obligation under this Agreement.
Prior to any disclosure of any confidential information under this Clause 18, the Partner shall give the Company no less than seven (7) days prior written notice and subject to the Company’s approval, and in making such disclosure, the Partner shall disclose only that portion of the confidential information agreed by the Company and required to be disclosed, and shall take all reasonable steps to preserve the confidentiality thereof.
All documents, records and other information delivered by the Company to the Partner pursuant to or connected with this Agreement shall be returned to the Company or destroyed to such extent in the event this Agreement is terminated.

Notice

All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and in English and delivered personally or sent by prepaid registered post with recorded delivery, or by courier or email addressed to the intended recipient thereof at its address or at its email address set out above (or to such other address or email address as a party to this Agreement may from time to time duly notify the other). Any such notice, demand or communication shall be deemed to have been duly served (if delivered personally or given or made by email) immediately or (if given or made by registered post or courier) forty-eight (48) hours after posting, and in proving the same it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed as a prepaid registered letter or that the email was properly addressed and sent. All notices and other communications required or permitted hereunder will be in writing and, unless otherwise provided in this Agreement, will be deemed to have been duly given when delivered in person; when dispatched through post or through email.

Subcontracting of the Services

The Company may outsource all or any part of the Services to a third party (hereinafter referred to as “Subcontractor”).
The Subcontractor shall have the same obligations as the Company under this Agreement, and the failure of the Subcontractor to comply with the terms and conditions of this Agreement would be a breach of the obligations by the Company.

Variation of Terms and Conditions

The Company can change the contents of the Service and the Platform Service at any time.
The Company also reserves the right to modify this Agreement. If the Company makes any changes to this Agreement, the Company shall notify the contents of the change and the effective date of the change in a method prescribed by the Company by the effective date of the change to the Partner. The Partner's use of the Platform Service after the notified effective time shall be deemed to be a consent to any of the changes made to the Agreement.

Assignment

Neither party may assign any of its rights or obligations under the Agreement without the prior written consent of the other party.
Notwithstanding anything contained herein, the Company may novate, assign, transfer or sub contract all or any of its rights and obligations, information of the Partner and other End Users in connection with the Platform Service under this Agreement, at any time, without prior written consent to the Partner, to:
1. any subsidiary or related/affiliated company of the Company;
2. an acquirer of our equity, business or assets; or
3. a successor by merger.

Entire Agreement

The Agreement contains the whole agreement between the parties relating to the subject matter of the Agreement at the date of this Agreement to the exclusion of any terms implied by law which may be excluded by contract and supersedes any previous written or oral agreement between the parties in relation to the matters dealt with in the Agreement.

Severability

If any term or provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such term or provision or part shall to that extent be deemed not to form part of the Agreement and the legality, validity or enforceability of the remainder of the Agreement shall not be affected.

Survival Provisions

The provisions of Clause 4 (if there is any payment due and unpaid), Clause 5, Clause 6, Clause 8 (if there is any payment due and unpaid), Clauses 9 to 11, Clauses 13 to 18 and Clauses 23 to 26 shall survive the termination of this Agreement; provided, however, that Clause 18 shall last only for three (3) years after the termination of this Agreement.

Governing Law and Jurisdiction

This Agreement shall be governed by, and construed in accordance with, the Laws of Malaysia.
The parties irrevocably agree that the courts of Malaysia are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Agreement and that, accordingly, any legal action or proceedings arising out of or in connection with the Agreement may be brought in those courts and the parties irrevocably submit to the jurisdiction of those courts.

Roadside Assistance Benefits

Minor Roadside Repair

In the event of a car Breakdown of a Named Vehicle and/or Accident, the Member can contact the Company’s 24-hour call centre for immediate assistance. The Company shall arrange for a mechanic to be sent to the site where the Named Vehicle has broken down or encountered an Accident to provide the Minor Roadside Repair service.

The Company shall organize and pay for the labour cost for the Minor Roadside Repair incurred by the Member up to the maximum limit of Ringgit Malaysia Three Hundred only (RM300.00) per event per Named Vehicle. Should the total charges incurred on the labour cost exceed the specified limit, the Member shall be required to bear the additional labour cost.

The Company shall not be responsible for any Third Party Provider costs (including, but without limitation to, the costs of spare parts, locksmith, batteries or petrol required during the performance of Minor Roadside Repair and such Third Party Provider costs shall be borne by the Member, the payments to be settled directly by the Member to the Third Party Provider involved.

The 24-hour emergency towing and/ or Minor Roadside Repair service shall be made available by the Company in the event the Named Vehicle is immobilized at any place within the geographical areas of Peninsular Malaysia (excluding its islands save and except for Penang and Langkawi), East Malaysia, and on the island of Labuan.

Accident Towing / Breakdown Towing

In the event of a car Breakdown of a Named Vehicle and/or Accident, the Member can contact the Company’s 24-hour call centre for immediate assistance. The Company shall arrange for a tow truck to be dispatched to the site to tow the Named Vehicle to the preferred workshops.

The Company shall organize and pay for unlimited towing distance within Malaysia.

For the avoidance of doubt, the Company shall not be responsible for any Third Party Provider costs (including but not limited to the costs of spare parts, batteries, crane services or petrol) required during the performance of such towing and such Third Party Provider costs shall be borne by the Member, the payments to be settled directly by the Member to the Third Party Provider involved.

All cost incurred for toll charges (for Named Vehicle and tow truck), if any, shall be borne entirely by the Member.

The 24-hour Emergency Accident and/or Breakdown Towing services shall be made available by the Company in the event the Named Vehicle is involved in an Accident or Breakdown at any place within the geographical areas of Peninsular Malaysia (excluding its islands save and except for Penang and Langkawi), East Malaysia, and on the island of Labuan.

Flood Towing

In the event that the Named Vehicle is trapped in the flood, the Member can contact the Company’s 24-hour call centre for assistance. The Company may, at its sole discretion as it deems fit, arrange for a tow truck to be dispatched to the site to tow the Named Vehicle to preferred workshops.

The Company shall organize and pay for unlimited towing distance within Malaysia.

For the avoidance of doubt, the Company shall not be responsible for any Third Party Provider costs (including, but not limited to the costs of spare parts, batteries or petrol or required during the performance of such towing) and such Third Party Provider costs shall be borne by the Member, the payments to be settled directly by the Member to the Third Party Provider involved.

All cost incurred for toll charges (for Named Vehicle and tow truck), if any, shall be borne entirely by the Member.

The 24-hour Emergency Flood Towing services shall be made available by the Company in the event the Named Vehicle is immobilized at any place within the geographical areas of Peninsular Malaysia (excluding its islands save and except for Penang and Langkawi), East Malaysia, and on the island of Labuan.

Cross Border Towing

Upon receiving request from the Member, the Company may arrange for repatriation of the Named Vehicle from Brunei, Singapore or Thailand to Malaysia.

All costs and expenses incurred for such service including but not limited to the repatriation cost and levy fee shall be borne entirely by the Member.

Exclusions

The Company shall not be responsible to render the service or to bear any costs and expenses in respect of or under the following circumstances:-

Services not organized directly by the Company.
Service outside the territorial limits stated.
Cost of repair or replacement of parts and components in the workshop or service centre.
Petrol, toll charges, parking fees, accommodation and telephone charges.
When the car keys are not available or locked inside the Named Vehicle.
When the Named Vehicle do not have an engine or mechanical parts.
When towing is for the reason to dispose the Named Vehicle.
Towing for discovered stolen Named Vehicle, burned or abandoned vehicle.
When towing is for a reason of transferring the Named Vehicle from one workshop to another workshop.
When there is no valid road tax disc displayed on the Named Vehicle.
Towing of a Named Vehicle after it has been sent for a spray job.
Cost of services that are covered by a motor claim insurance for which a claim would be made (e.g; towing cost in the event of an Accident).
Towing or breakdown assistance due to natural catastrophic events or Act of God such as earthquake and windstorm.
If the Named Vehicle is or has been modified for participation in rally or racing, or if the Named Vehicle has been modified against government regulations.
Failure of the Member to take reasonable precautions or to follow warnings of any intended strike, riot or civil commotion via the mass media.
Any illegal or unlawful act by the Member or the use of the Named Vehicle for any unlawful or illegal purposes.
Towing or repair of any commercial Named Vehicles such as but not limited to lorries, trucks, wagons, taxis etc. The Company reserves the right to refuse assisting and towing of such vehicles.
When special towing and/or special equipment is required during the course of providing the towing services for the Named Vehicle which, in the sole opinion of the Company, are considered high risk and/or reasonably impracticable. For example, when the car or tyre fall into drain or river.
When the Named Vehicle is on an unpaved road surface or on a road that is not a gazette road of the road systems of Malaysia.
When the Named Vehicle can still be driven.
When the age of the Named Vehicle is more than 10 years.
When the breakdown of Named Vehicle is due to human negligence such as forgetting to fill up fuel or pumping in wrong fuel to the Named Vehicle.
When second towing of the Named Vehicle is requested for one same incident.

Limitations of the Company on Roadside Assistance Services

The Company shall not be held responsible for the failure to provide the Services due to or for delays caused by any of the following:
1. Inaccurate data or information submitted by the User;
2. Any material failure of equipment, facilities or services used by the Company in connection with the Services not within its control.
The User hereby agrees and acknowledges that the Company may for carrying out its duties and services hereunder, utilise the services of Third Party Providers. The Company shall not be liable for the unavailability, timing, quality, results of or failure to provide any service caused by the Third Party Provider that is beyond the Company’s control. The Company, however, will utilise prudent professional criteria and exercise reasonable care and diligence in the selection of the Third Party Providers to provide the Services.