SmartDrive AwareService Agreement

Effective Date: 1st Feb 2021

This SmartDrive Aware Service Agreement (“Terms” or “Agreement”) shall apply to End Users who use the Service related to car driving provided by SmartDrive Sdn. Bhd. (Company No. 202001001719 (1358038-U), a private company limited by shares incorporated in Malaysia and having its business address at Menara Sunway, Level 1, Jalan Lagoon Timur (9/1) Bandar Sunway, 47500, Selangor(hereinafter referred to as the “Company”).

These Terms shall govern your use of the Service and stipulate the rights and obligations between the Company and the End Users.

Application

The purpose of these Terms is to determine the rights and obligations between the Company and the End User regarding the use of the Service. It applies to all relationships related to the use of the Service.
The rules and regulations relating to the Service posted on the App at any time shall constitute a part of the Terms.

Definition

The following terms used in this Agreement shall have the meanings set forth

below:“Agreement” or “Terms” means this service agreement.

“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.

“Points” shall have the meaning ascribed to it in Clause 12.1.

“Registration Information” shall have the meaning ascribed to it in Clause 3.

“End User” means an individual registered as a user of the Service pursuant to Clause 3.

“Service” means the service provided by the Company to the End User through the App to provide information on car driving.
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. 3. Registration

Registration

The application for registration must be made by the individual who intends to use the Service (“Applicant”), and in principle, application for registration by an agent is not allowed. In addition, Applicants must provide the Company with true, accurate and up-to-date information.
Applicants may not impersonate someone else or use a third party’s identity to apply for registration.
Subject to the Company's standards, the Company reserves the right in its sole discretion to reject any application without providing any reason thereof. If the Company approves the registration, the Company shall notify the Applicant that the registration has been completed.
Upon completion of the registration, a contract for the use of the Service in accordance with the provisions of these Terms shall be concluded between the Applicant and the Company. The Applicant is permitted to use the Service in the manner prescribed by the Company in accordance with this Agreement.
The Company may reject any application for registration if the Applicant falls under any of the following items:
1. when the Company determines that there is a risk of the Applicant violating these Terms;
2. if all or part of the registration information provided by the Applicant to the Company is false or erroneous, or omits certain important information;
3. in the case where the application for registration of use of the Service has been rejected by the Company in the past;
4. a minor, a person under custody, or a person under assistance, without the consent of his parent, legal representative, guardian, custodian or assistant;
5. is involved in acts that are contrary to the public orders and morals; or
6. if the Company determines that the application for registration of use of the Service is not appropriate.

Changes to the Registered Information

The End User agrees at all material times to keep the Company informed of any change to their registered information (if any) and to notify the Company of the change according to the method specified by the Company without any delay and to submit the materials upon request by the Company.

Management of Password and User ID

Passwords shall be managed by the End User at its own risk. The End User shall take all the necessary steps to ensure that its user ID and password are secure and kept confidential at all times, and should inform the Company immediately if the End User has any reason to believe that its user ID or password has become known to someone else, or if the password is being, or is likely to be used in an unauthorized manner.
The End User is responsible for all the activities that take place in his account. This includes any unauthorized access and/or use of his account.
If the Company has reason to believe that there is likely to be a breach of security, unauthorized use of the End User’s account or misuse of the Service, the Company may require the End User to change his password or the Company may suspend such End User’s account pending investigation.
Notwithstanding anything contained herein, the Company shall not be liable for any losses, damages, costs and expenses suffered or incurred by the End User when the password is used by any third party save for any losses, damages, costs and expenses suffered or incurred by the End User as a result of the wrongful act and/or gross negligence of the Company.
No End User is allowed to create or hold more than one user ID.

Usage Fees and Expenses

The Service is provided to the End User free of charge on an “as is, where is” basis. However, the Internet network and other communication charges related to the use of the Service will be borne by the End User.
The preparation and maintenance of the mobile phone, software and other equipment, communication lines and other communication environment, etc., necessary to receive the provision of the Service shall be performed at the expense and responsibility of the End User.
End Users shall take security measures such as prevention of computer virus infection, unauthorized access and information leakage at their own expense and responsibility.

Specific Restrictions

During the use of the Service by the End Users, the End Users must not do or attempt to do anything that is unlawful or prohibited by any laws applicable to the Service which the Company would consider inappropriate, or which might bring the Company or the Service into disrepute, including but not limited to:
1. acts that violate the intellectual property rights, portrait rights, privacy rights, honor, other rights or interests of the Company or other End Users or other third parties;
2. acts related to criminal acts or acts against public order and morals;
3. acts that violate laws and ordinances or internal rules of the trade association to which the End User belongs;
4. acts of transmitting harmful information including computer viruses and other harmful computer programs;
5. acts of falsification of information that can be used for the Service;
6. acts of transmitting data over a certain data volume specified by the Company through the Service;
7. acts of reverse engineering or other analysis of the App;
8. acts that violate or will violate these Terms; or
9. any other acts deemed inappropriate by the Company.
If the Company determines that the act of transmitting harmful or false information by the End User in respect of the Service breaches lause 7.1 or there is a possibility that such information will be transmitted, the Company may delete all or part of the information, and/or suspend the End User’s account pending investigation without any prior notice to the End User. The Company shall not be liable for any losses or damages suffered or incurred by the End User due to measures taken by the Company under this Clause 7.

Termination or Suspension of the Service

The Company reserves the rights at its sole discretion to suspend all or part of the use of the Service without any prior notification to the End User in any of the following cases:
1. when inspection, upgrade or maintenance of the computer system related to the Service is performed regularly or urgently;
2. a computer, communication line, etc., is stopped due to an unforeseeable accident;
3. the Service cannot be operated due to a Force Majeure event; or
4. the Company determines that suspension or interruption is necessary.
The Company reserves the right to terminate or temporarily suspend the use of the Service and/or this Agreement at any time, without cause, and without any prior written notice to the End User.
Upon termination:
1. all rights granted to the End User under this Agreement will also be terminated;
2. the End User must cease all use of the Service; and
3. the End User shall not be allowed to claim against the Company save for any claim arising from any losses or damages suffered or incurred by the End User as a result of the wrongful act and/or gross negligence on the part of the Company.

Storage of Information

Notwithstanding that the messages and other information sent and received by End Users are kept or stored by the Company for a certain period of operation, the Company is not obliged to store such information, and the Company may delete or remove such information from its server at any time. The Company shall not be liable for any losses or damages suffered or incurred by the End Users due to the measures taken by the Company under this clause.

Software Installation

When the End User installs the App on the End User's mobile phone by downloading or other method at the start of use of the Service or during the use of the Service, the End Users shall not destroy or alter the information they hold or to cause equipment failure or damage, etc. The Company shall not be liable for such damages which have occurred to End Users.

Intellectual Property Rights

he Company grants the End Users a non-exclusive, royalty-free, revocable, in whole Malaysia, non transferable license to use the App, Service and Intellectual Property Rights in accordance with these Terms. A right granted by the Company to use the Service under this Agreement does not imply a transfer of license of the Intellectual Property Rights of the Company or anyone who has licensed the Company to the End Users.
The End User must not:
1. Copy or modify in whole or any part of the App and Service;
2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any content of the App and Service to any third party; and
3. directly or indirectly infringe any Intellectual Property Rights connected with the App and Service, including without limitation, disassembly, decomplication and reverse engineering.

Points

In the event that the End User installs the App and provides driving data to the Company through the Service, the running data, driving method, and other standards separately specified by the Company shall constitute the points (hereinafter referred to as the “Points") awarded to End Users as rewards for providing such data.
The Company may suspend the use of the Points by the End User or revoke the Points in any of the following cases:
1. when the End User acquires the Points by an unauthorized or illegal method;
2. when the End User violates any of these Terms;
3. in the event the Company deems the usage of the Points inappropriate;
All Points are not transferable, assignable nor convertible to cash by the End User.
In the event this Agreement is terminated for any reason, the Points held by the End User will expire at the end of the validity period.

Cancellation of Registration

In the event that the End User falls under any of the following items, the Company reserves the right at its sole discretion to temporarily suspend the use of the Service by the End User without any prior written notice, and the Company may cancel the End User’s account:
1. in the event of breach of any provision of these Terms by the End User;
2. when it is found that the information provided by the End User is false;
3. in the event the End User uses or attempts to use the Service for any purpose or method that may cause damage to the Company, other End Users or other third parties;
4. in the event of disrupting the operation of the Service, regardless of the means;
5. if payment is suspended, or insolvency or bankruptcy proceedings are filed, or there is a petition to commence similar procedures against the End User;
6. when a cheque has been rejected or suspended by the Company’s bank;
7. when there is a petition for seizure, provisional seizure, provisional disposal, forced execution or auction;
8. in case of tax delinquency;
9. in the case of death;
10. if the End User has not used the Service or has not responded to the message or enquiry from the Company for more than six (6) months;
11. cases falling under any item of Clause 3.5; or
12. when the Company determines that it is not appropriate to continue registration as the End User.
The Company may cancel the End User’s account by notifying the End Users at least sixty (60) days in advance using the method prescribed by the Company.
All Points are not transferable, assignable nor convertible to cash by the End User.
If the End User’s account is cancelled under this Clause 13 , the End User shall immediately cease using the App and the Service based on the Company’s instructions.

Disclaimer of Warranty

The parties agree and acknowledge that the Company does not make any representation or warranty, express or implied, as to the accuracy, completeness, certainty or usefulness of information on the condition of vehicles including but not limited to the speed, fuel efficiency, driving route, etc., arising from the use of the App. In the event the End Users obtain any information about the Service or information about other End Users, directly or indirectly, from the Company, the Company makes no warranty to the End Users beyond what is stipulated in these Terms.
The Company makes no warranty to the End Users that the Service does not contain any viruses, worms, corrupted data or other harmful elements.
End Users shall be solely responsible for compliance of the laws and regulations in Malaysia and at their own costs and expense to investigate whether the use of the Service violates laws and regulations applicable to the End Users, and the Company makes no warranty to the End Users that the use of the Service by End Users conforms to laws and regulations applicable to the End Users.
Transactions, communications, disputes, etc., which occur between End Users and other End Users or other third parties in connection with the Service or the App, shall be handled and resolved at the End User's responsibility, and the Company is not responsible for such matters.
The Company shall not be liable for suspension, termination or change of the provision of the Service by the Company, deletion or loss of the End User's message or information, cancellation of the End User’s account, or loss of data due to the use of the Service, or any damage to the equipment, delay in operation or communication, unauthorized access or tampering, any other damages incurred by End Users in connection with the Service.

Dispute Settlement and Damages

The End User undertakes to fully indemnify, keep indemnified and hold harmless the Company from and against any and all losses, liabilities, obligations, damages, judgements, deficiencies, claims, demands, suits, proceedings, arbitration, assessment, costs and expenses (including expenses of investigation and enforcement of this indemnity and reasonable solicitors’ fees and expenses) sustained, incurred, suffered or paid by the Company as a result of or arising from the End User’s use of the Service.
If the End User receives a complaint from another End User or another third party in connection with the Service or causes a dispute with such a person, the End User shall immediately notify the Company of the complaint. Notwithstanding that, any claim or dispute shall be processed at the cost and expense of such End User, and the progress and results shall be reported to the Company upon request from the Company.
In the event that the Company receives any claims from any other End Users or other third parties for infringement or other reasons in connection with the use of the Service by the End User, the End User shall be liable to indemnify the third party for the amount the Company is liable to pay.
The Company shall not be liable for any damages incurred by End Users in connection with the Service. In the event the Company is liable for damages to End Users, the liability of the Company is limited to one hundred Ringgit Malaysia (RM100.00) only.

Disclaimers

To the maximum extent permitted under applicable law, the Company expressly disclaims all conditions and warranties, whether express, implied, statutory or otherwise, with respect to the use of 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 End Users in connection with the use of the Service:
1. the End Users are not able to use the Service due to the End Users’ fault;
2. damage caused to the third party by the End Users by using the Service;
3. the completeness, accuracy, certainty or usefulness of the information obtained through the Service;
4. system interruptions, delays, suspensions, loss of data, unauthorized access to data, related to the Service due to malfunctions of equipment, software and hardware used by End Users including but not limited to internet access lines and computers and other damage incurred by the End Users regarding service usage;
5. damages related to the completeness, accuracy, certainty, or usefulness of information obtained through the Service;
6. unstable dial-up connection, unauthorized access, or connection fees charged by the telephone company or various telecommunications carriers when using the Service;
7. claims, disputes, claims for damages, etc., caused by server failures or other obstacles in using the Service; or
8. any other damages arising in connection with the use of the Service.

Confidentiality

In this Agreement, "Confidential Information" refers to all technology, finance, business information of the Company or confidential knowledge received or obtained as a result of the use of Service or entering into or performing this Agreement, that has been furnished, provided or disclosed by the Company in writing, verbal or recording media in accordance with this Agreement.
The party may disclose Confidential Information which would otherwise be confidential if and to the extent:
1. it is required to do so by the law or any governmental authority to which it is subject wherever situated;
2. it considers it necessary to disclose the Confidential Information to its professional advisers, auditors and bankers on terms that such professional advisers, auditors and bankers undertake to comply with the provisions of this Clause 17 in respect of such information as if they were a party to this Agreement;
3. the Confidential Information was lawfully available to that party on a non-confidential basis from a source other than any of the other parties prior to any disclosure thereof by any of the other parties, as evidenced by competent proof thereof;
4. the Confidential Information has come into the public domain through no fault of that party; or
5. the other parties have given prior written approval to the disclosure or use.
For purposes of this Agreement, Confidential Information shall not be deemed to be in the public domain merely because individual elements thereof are separately found in the public domain.
End Users shall not at any time:
1. disclose the Confidential Information to any person;
2. use the Confidential Information for their own purposes or for any purposes; or
3. through failure to exercise all due care and diligence, cause or permit any unauthorized disclosure of any Confidential Information.
Prior to any disclosure of any Confidential Information under this Clause 17, the End Users 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 End Users 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 End Users 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.

Handling of End User Information

The handling of End User information by the Company shall be stipulated separately in the Privacy Policy of the Company, and the End User shall agree that the Company will handle the End User information in accordance with the Privacy Policy.

Validity Period

This Agreement shall become effective as of the date of the approval of registration under Clause 3 and shall continue in effect until the occurrence of the following:
1. the date on which the registration of the End User has been cancelled; or
2. the date on which the Service has been terminated by the Company.

Variation to this Agreement

The parties agree and acknowledge that the Company reserves the right to modify, vary, or change the contents of this Agreement at any time as the Company deems fit without prior notice to the End User. Such modifications, variations and changes to the contents of this Agreement shall be effective upon the posting of an updated version on the App, Company’s website or any other medium the Company deems appropriate.

Communication and Notification

Any inquiries regarding the Service and other communications or notices from End Users to the Company, and notices regarding variation to this Agreement and other communications or notices from the Company to End Users shall be made in accordance with the manner prescribed by the Company.

Assignment

End Users shall not assign or transfer its rights and obligations under this Agreement to a third party without the prior written consent of the Company.
Notwithstanding anything contained herein, the Company may novate, assign, transfer or sub contract all or any of its rights and obligations, information of the End User and other customer information in connection with the Service under this Agreement, at any time, without prior written consent to the End User, 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

This Agreement constitutes the entire agreement between the Company and the End User regarding the matters included in this Agreement, and supersedes any previous written or oral agreement between the End Users and the Company in relation to the matters dealt in this Agreement, and without prejudice to the generality of the foregoing, excludes any term, warranty, condition or undertaking implied at law or by custom.

Severability

If any provision of this Agreement is or may become under any written law, or is found by any court or administrative body or competent jurisdiction to be, illegal, void, invalid, prohibited or unenforceable then:
1. such provision shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability;
2. the remaining provisions of this Agreement shall remain in full force and effect; and
3. the parties shall use their respective best endeavours to negotiate and agree a substitute provision which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking.

Surviving Provisions

Clause 5.2, Clause 5.4, Clause 7.2, Clause 8.3.3, Clauses 9 to 12, Clause 13.2, Clauses 14 to 19, and Clauses 23 to 26 shall survive 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 this Agreement and that, accordingly, any legal action or proceedings arising out of or in connection with this Agreement may be brought in those courts and the parties irrevocably submit to the jurisdiction of those courts.

Force Majeure

Notwithstanding anything herein contained, none of the parties will be liable to any of the other parties 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 parties of the occurrence of the relevant event and will use all reasonable endeavours 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.