TERMS OF
SERVICES

COMMUNICATION, PAYMENT, RELATIONSHIP
  1. INTRODUCTION

    In these Terms of Services, “we”, “us”, “our” or “MACROKIOSK” will refer collectively to our entity set out in the Sales Order. The terms “you”, “your” and “Customer” will refer to you.

    These Terms of Services constitutes a legal binding agreement between you and MACROKIOSK and shall be read in conjunction with the Sales Order. By signing the Sales Order, you agree that (i) you have read, understand, and accept these Terms of Services and all other policies referenced herein, each of which is incorporated herein by this reference and each of which may be updated from time to time as set forth below; and (ii) you have consented to MACROKIOSK collecting, using, processing and disclosing personal data as further described in our Privacy Policy. If you do not agree to be bound by these Terms of Services, you should not sign the Sales Order. These Terms of Services and the Sales Order are collectively referred to as “Agreement”.

    This Agreement incorporates the following additional policies:

    1. Privacy Policy, (“Privacy Policy”); and
    2. Supplemental Terms for Certain Services, (“Supplemental Terms”).
      If you do not see the Services you order under the Sales Order in the Supplemental Terms, these terms provided herein shall be the conclusive terms applicable to you.

    In this Agreement, unless the context otherwise requires, the definitions set out in Appendix 1 shall apply.

  2. CHANGES TO AGREEMENT

    We may update this Agreement from time to time. Any changes we make to this Agreement in the future will be reflected on this page and any changes we deem material will be notified to you through email. Where permissible under local laws, your continued use of our Services shall constitute your acknowledgement and acceptance of the changes we make to this Agreement. You agree that it is your responsibility to check back frequently to see any updates or changes to this Agreement.

  3. ACCESS AND USE OF THE SERVICES

    1. We will make the Services available to you in accordance with this Agreement, the requirements of the Service Providers, and any Laws applicable to MACROKIOSK’s provisions of the Services subject to your use of the Services in accordance with this Agreement.
    2. We use our commercially best efforts to ensure that our Services will achieve 99% uptime. If parties enter into a separate service level agreement, then the service availability stated herein shall be superseded. Our standard service level commitments (“SLC”) will be available upon written request.
    3. You may use the Services on a non-exclusive basis for the purposes of making available the services to the End Users.
    4. To access and use the Services, we will create an account for you. As part of the account creation process, you will be asked to provide information. You shall provide accurate, complete, and current Account information and, as applicable, timely update the same. You are responsible for the activity that occurs on your Account (which includes its sub-account), including via the Customer Application (as defined below) and for keeping your Account password secure. We will not be liable for any unauthorised use of the Account.
    5. Upon signing the Sales Order, if you have not submitted the information and supporting documents required for our know-your-customer (KYC) process, you are required to submit the same within seven (7) business days or such other period as may be notified by MACROKIOSK. Failure to provide such requested information and documents within the timeline stipulated may result in suspension of Services in accordance with Clause 14.1.
    6. Subject to your compliance with this Agreement, we hereby grant you a limited, revocable, personal, non-exclusive, non-transferable, non-sublicenseable licence until this Agreement is terminated to (i) use the documentation and MACROKIOSK API made available to you to create the Customer Application and (ii) make the services available to your End Users through the Customer Application.
    7. The features and functions of the Services, including the MACROKIOSK API and our SLC may change over time; provided however, we will not materially decrease the overall functionality of the Services. It is your responsibility to ensure each Customer Application is compatible with the then current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if such changes become necessary, we will use reasonable efforts to let you know at least thirty (30) days prior to implementation. In the event we make a non-backwards compatible change to a MACROKIOSK API and causes Adverse API Change, (a) you will notify us of the Adverse API Change, (b) we may agree to work with you, in our sole discretion, to resolve or otherwise address the Adverse API Change, except where we, in our sole discretion, have determined that an Adverse API Change is required for security reasons, by Service Provider, or to comply with applicable Laws.
  4. FEES & PAYMENT

    1. In consideration for the Services provided by us to you, you shall pay to us the Fees in accordance with the Sales Order.
    2. In the event you dispute any invoice or report, you will raise the dispute in writing (together with supporting document(s)) to us within seven (7) days from the date the invoice or report, failing which the invoice or report is deemed final and conclusive. We reserve the right not to perform any reconciliation or review of any dispute should the disputed amount is less than five per cent (5%). In the event of a dispute, the Parties agree to use their best efforts to resolve such disputes within 15 days following your written statement describing the dispute. If the dispute cannot be resolved within 15 days following your written statement describing the dispute, you agree to rely on MACROKIOSK’s invoice or report to pay the outstanding charges. Notwithstanding the foregoing, you shall pay us with the undisputed invoiced amount in accordance with the Sales Order.
    3. We reserve the right to change the Fees from time to time by providing an email notification to the you (“Price Variation”). The said email notification shall be deemed received and read by you on the business day immediately after successful transmission of the said email notification. The Price Variation shall come into full force and effect on the date of the said email notification. For the purpose of this clause and for the avoidance of doubt, the expression “successful transmission of the said email” shall be measured and defined as the time the said email is duly disseminated or sent out from the email server of MACROKIOSK or MACROKIOSK’s appointed third party.
    4. In the event the Fees are varied by Service Providers (“Service Providers’ Variation in Cost”), we shall be entitled, at our sole and absolute discretion, to forthwith pass along such varied Fees in accordance with the time of the said Service Provider’s Variation in Cost being effected, or come into force, with or without notice to you.
    5. In the event you are not agreeable with the Price Variation or Service Providers’ Variation in Cost, you shall be entitled to immediately terminate this Agreement with notice in writing to us.
    6. Each party shall bear its own tax required by applicable law including but not limited to federal, state, local or foreign government tax, fee, duty, surcharge, withholding tax or other tax-like charges. You shall further adhere to such other tax such as sales and services tax which is applicable for certain jurisdiction as set out in respective Sales Order.
  5. RESTRICTIONS

    1. In using the Services, you agree that you or your End Users will not, and will not authorise, assist or enable any third party to, engage in any of the following:
      1. Violating any applicable Laws;
      2. Violating standards, policies or applicable guidelines published by the Service Providers as may be communicated to you in writing by us;
      3. Transferring, reselling, leasing, licensing or otherwise making available the Services to third parties, except making available the Services to your End Users;
      4. Deciphering, decompiling, disassembling, reverse engineering or otherwise attempting to derive any source code or underlying ideas or algorithms of any part of the Services;
      5. Damaging, interfering with, overburdening, or otherwise adversely impacting the availability, reliability or stability of the Services or third-party systems or networks relating to the Services;
      6. Attempting to circumvent or break any security mechanism on any of the Services, or using the Services in any manner that poses a security or other risk to MACROKIOSK, MACROKIOSK’s vendors, any user of the Services, or any customer of any of the foregoing;
      7. Benchmarking, tampering with, unauthorised testing, reverse-engineering, decompiling, or otherwise using the Services in order to discover limitations or vulnerabilities, or evade filtering capabilities;
      8. Engaging in fraudulent, deceptive, inaccurate or misleading activity with respect to third parties (including impersonation of identity or identifiers such as phone numbers or email addresses) or otherwise bypassing legitimate identification systems;
      9. Failing to obtain any legally required consent from those third parties (or, where required, their parents, representatives, or guardians) for the collection, use, and disclosure of the third parties’ personal data as described in the Privacy Policy.
      10. Sending content to End Users who have not consented to receiving such content by opting in or actively registering with you and/or us for the receipt of such content;
      11. Using the Services to harvest or otherwise collect information about individuals, including email addresses or phone numbers, without their explicit consent or under false pretenses;
      12. Engaging in spamming, or other unsolicited, unwanted or harassing advertising, marketing or activities including activities that violate data protection or privacy laws;
      13. Engaging in activities or, uploading, downloading, submitting, transmitting, distributing or facilitating the distribution of, any information that contains “inappropriate content” in connection with the Services. Inappropriate content includes, but is not limited to, content that:

        1. May be considered libelous, slanderous, defamatory, threatening, sexually explicit, vulgar, profane, obscene, offensive, abusive, malicious or otherwise harmful to any person or entity, constitutes or promotes “hate speech” or is otherwise discriminatory based on race, sex, religion, nationality, disability, sexual orientation, language, or age.
        2. Contains or transmits viruses, Trojan horses, worms or any other malicious, harmful or deleterious programs or similar destructive routines.
        3. Promotes, markets or otherwise relates to illegal activities or terrorism.
        4. Infringes on, misappropriates, or violates any intellectual property rights or other rights of third parties, including but not limited to trademark, copyright, patent, trade secrets, rights of publicity, and rights of privacy.
        5. Constitutes or relates to “adult services” or content of an adult nature, including, without limitation, content that contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by MACROKIOSK in its sole discretion.
        6. Comprises or promotes alcohol, gambling, lottery or tobacco content except where appropriate age-gating functionality has been implemented and such content is otherwise legal in the applicable jurisdiction.
        7. Contains sensitive financial or identification information or documents and protected health information.

  6. REPRESENTATIONS AND WARRANTIES

    1. Authority and Capacity: You warrant and undertake that you are duly authorised to do business and use the Services in all jurisdiction in which you operate. You further warrant that you have the legal right and full power and authority to enter into and perform this Agreement to which you are a party, which when executed will constitute valid and binding obligations on you, in accordance with its terms.
    2. Licences: You warrant and undertake to and with MACROKIOSK that you have carried on your business and operation in compliance with the applicable regulatory requirements and you have obtained all licences, consents and approvals (“Licenses”) necessary for entering into this Agreement and using the Services. The Licences are in full force and effect and all conditions applicable to any such Licence have been and are being complied with.
    3. Anti-bribery and corruption: You warrant and undertake to and with MACROKIOSK that you are in compliance with the applicable Anti-Bribery and Corruption Laws and there are no action by or before any governmental entity involving you with respect to Anti-Bribery and Corruption Laws that is pending. You further warrant that you have maintained and implemented in effect policies and procedures reasonably designed to enable compliance with the Anti-Money Laundering Laws and Anti-Bribery and Corruption Laws.
  7. DISCLAIMER

    1. Except as otherwise expressly set forth above in this Agreement and to the maximum extent permitted by applicable Laws, the Services are provided “as is” and we make no warranty, representations or claim of any kind, whether express or implied, in connection with the Services, including, without limitation, warranties of non-infringement of third party rights, merchantability, satisfactory quality or fitness for a particular purpose. We additionally disclaim all warranties related to the Service Providers.
    2. Without limiting to the to the foregoing, we do not warrant that the Services will be available, accessible, uninterrupted, timely, secure, accurate, complete or error-free, and that defects, if any, will be corrected or that our Services are free of viruses, clocks, timers, counters, worms, software locks, drop dead devices, trojan-horses, routing, trap doors, time bombs or any other harmful codes, instructions, programs or components.
    3. MACROKIOSK does not warrant, endorse, guarantee or assume liability for any content of, communication by, or product or service advertised or offered by you through our Services and we will not be a party to or in any way be responsible for monitoring the transaction between you and any third parties.
    4. We deliver the content via the Service Providers and can therefore only influence the delivery/transmission of the content within the technical parameters and constraints imposed by such Service Providers. We have no influence whatsoever on the quality of the Services once the content has been submitted to the Service Providers and thus has left our domain of control. We cannot commit to or guarantee any delivery time as such time depend on various network and system-related factors among the various entitles involved in transporting the content.
  8. MUTUAL INDEMNIFICATION

    1. You agree to indemnify, defend and hold us, our officers, directors, employees, affiliates, suppliers, contractors, agents and assignees harmless from and against all loss, damage or liability which we may at any time and from time to time sustain, incur or suffer including any actions, claims, demand, suit or proceedings made or brought against us by a third party, arising out of or in connection with:

      1. Unauthorised or prohibited use of the Services including violations of this Agreement by you, your employees, agents, subcontractor or End Users;
      2. Your products, content, Customer Application or Application Content;
      3. Any negligent, fraudulent or wilful act of any of your officers, directors, employees, affiliates, suppliers, contractors, agents or assignees which may constitute a breach of this Agreement in respect to the use of the Services; and
      4. any penalties, fines or costs necessitated or imposed by the Government Body or Service Providers against MACROKIOSK as a result of your products, content, Customer Application, Application Content or your use of the Services.

    2. In the event a claim is brought against you by third parties alleging that our provision of our Services infringes or misappropriates their intellectual property rights, we will indemnify you from any damages and costs awarded against you by the court or for settlement amounts approved by us for the infringement claims.
    3. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any claims; provided, however, any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Clause except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole and exclusive authority to defend or settle any claim; (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Clause at Indemnifying Party’s expense, to participate in the defense of any claim. Notwithstanding anything to the contrary in this Clause, Indemnifying Party will not settle any claims for which it has an obligation to indemnify pursuant to this Clause admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
    4. Each of the indemnities in this Agreement constitutes a separate and independent obligation from the other obligations in this Agreement, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by us to you and shall continue in full force and effect despite any judgment, order, claim or proof for a liquidated amount in respect of any sum due under this Agreement or any other judgement or order.
  9. SECURITY

    1. While we use our commercially reasonable efforts to ensure the security of our Services are sufficient, you acknowledge that we shall not be liable for the security of your data, information and/or content and that we have no obligation to ensure the security of such data, information and/or content. You shall be solely responsible for the data, information and content retrieved, stored or transmitted through the Services.
    2. We shall not be responsible for any unauthorised access to your data, information and/or content unless such unauthorised access occurs as a result of any negligence, fraud and/or wilful misconduct on our part which includes our employees.
  10. LIMITATION OF LIABILITY

    Notwithstanding anything to the contrary herein and to the maximum extent permitted by applicable Laws, in no event shall MACROKIOSK, its officers, directors, employees, affiliates, suppliers, contractors, agents and assignees be liable to you for (i) any special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever, loss of profits, goodwill, revenue, income or business, interruption of business, cost of procurement of substitute goods, technology, rights or services arising out of or in connection with the Services; and (ii) any liability arising out of or in connection with this Agreement (including any damages whether direct or indirect) that exceeds the payment of all properly due charges by you to us in the preceding one (1) month.

  11. CONFIDENTIALITY

    1. Subject to Clause 11.2, each party (the “Recipient Party”) shall treat as confidential and shall not disclose or use any information received or obtained as a result of provision of the Services without the prior written consent of the other party (the “Disclosing Party”) which relate to:
      1. Any information (whether oral, in writing, machine readable or in any other form) and materials (whether electronically recorded, in writing or otherwise) that would be regarded as confidential by a reasonable businessperson relating to:

        1. the commercial, financial, business, affairs, customers, clients, suppliers, plans, intention or market opportunities of the Disclosing Party;
        2. the technical, operations, processes, product information, know-how, designs, trade secrets, software or other information directly or indirectly related to the Services including discoveries, ideas, concepts, devices, drawings, materials, specifications, techniques, models, data, documents, procedures, improvements, budgets, projections, forecasts, marketing and development plans, and financial information expressed, described or stored in whatever form made available by the Disclosing party to the Recipient Party; and
        3. confidential information of the Disclosing Party’s suppliers, customers and clients.

      2. non-public information provided to the Recipient Party and/or any of its affiliates and its and their managing directors, officers, directors, employees and advisors (collectively, the ”Representatives”) by the Disclosing Party and/or its Representative and which is reasonably designated in writing to be confidential or which, under the circumstances surroundings its disclosure ought to be reasonably treated as confidential;

        Collectively, the “Confidential Information
    2. Clause 11.1 shall not prohibit disclosure or use of any Confidential Information that:

      1. the disclosure or use is required by law, any regulatory body or any recognised stock exchange;
      2. the disclosure is required by the Service Providers upon their request. In the event the Service Providers request more information of you from us, then you shall duly provide all such requested information to us so that the same will be provided to the Service Providers, as the case may be.
      3. the disclosure is made to professional advisers or funders of any of the parties on terms that such professional advisers or funders undertake to comply with the provisions of Clause 11.2 in respect of such information as if they were a party to this Agreement;
      4. was, at the time of its disclosure by the Disclosing Party, in the public domain or subsequently disclosed or made available to the public (except where such disclosure is a result of a breach by the Recipient Party of this Agreement);
      5. was lawfully in the possession of the Recipient Party or its Representatives prior to its disclosure by the Disclosing Party to the Recipient Party;
      6. was already known to the Recipient Party or any of its Representatives on a non-confidential basis prior to its disclosure by the Disclosing Party to the Recipient Party;
      7. is or becomes available to, or obtained by the Recipient or its Representatives from, a third party without any restrictions as to its use or disclosure by the Recipient Party (and for the avoidance of doubt, neither the Recipient Party nor its Representatives shall be required to enquire whether such third party owes a duty of confidentiality to the Disclosing Party); or
      8. is independently developed by the Recipient Party or its Representatives, without prior knowledge of, or receipt of the Disclosing Party’s information.

    3. Notwithstanding any provisions to the contrary, we shall be allowed to use the Confidential Information collected through the Services for the purpose of statistical analysis of service usage, research and marketing, improving our own product offerings as well as customising our platform only.
    4. Upon receipt of a written request from the Discloser Party, the Recipient Party shall:

      1. destroy or return to the Disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information; and
      2. erase all Confidential Information from its computer systems or which is stored in electronic form (to the extent possible); and
      3. certify in writing to the Disclosing party that it has complied with the requirements of this Clause.

        provided that the Recipient Party and its Representatives may retain documents and materials containing, reflecting, incorporating or based on the Confidential Information to the extent (i) required by law, rule or regulations or by any judicial, governmental, supervisory or regulatory authority; and (ii) as part of back up archival records in any systems containing or previously containing the Confidential Information where such back-up or archiving occurs automatically and is retained as part of a computer disaster recovery system or other computer back-up system in the usual course of operating that computer system and where it is not reasonably practicable to delete the Confidential Information so held provided that the Recipient Party make such Confidential Information inaccessible to third parties.

  12. TERMS AND TERMINATION

    1. This Agreement, as may be updated from time to time, will commence on the date you sign the Sales Order and continue until terminated in accordance with Clause 12.2 and 12.3 below.
    2. Either party may terminate this Agreement or a particular Sales Order with immediate effect if the other party:

      1. commits a material breach of any terms of the Agreement which is incapable of remedy;
      2. commits a material breach of any terms of the Agreement which is capable of remedy but fail to remedy the same within thirty (30) days (or any other period where we mutually agree) from receipt of a written notice from other party;
      3. is or becomes unable to pay its debts within the meaning of the Malaysian Companies Act 2016 or any other legislation regarding insolvency of the jurisdiction in which it carried on business;
      4. enters into (pursuant to an order made by the court) any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
      5. is faced by an order by the court for winding up or dissolution;
      6. is faced by a receiver, receiver and manager, special administrator, trustee or similar official appointed over any of the assets or undertaking; or
      7. ceases or threatens to cease carrying on a substantial portion of its business.

    3. Notwithstanding any provisions to the contrary, either party may terminate this Agreement or a particular Sales Order for any reason upon thirty (30) days written notice to the other party.
    4. In the event we or you become entitled to terminate this Agreement pursuant to Clause 12.2 but fail to exercise this right, it shall not constitute a waiver of any other rights to recover damages, losses or costs whatsoever that we or you may have suffered in connection with or arising from the event or circumstance or combination of events or circumstances giving rise to such right of termination.
    5. Upon termination of this Agreement, the Services will be suspended and you shall pay us all amounts which have been invoiced to you, as well as all the transactional charges incurred by us but not invoiced to you in accordance with this Agreement, which remain unpaid at the termination date.
    6. Upon termination of this Agreement, the terms of this Clause 12.6 and the terms of the following Clauses will survive (i.e. still apply): Clause 4 (Fees), Clause 7 (Disclaimer), Clause 8 (Mutual Indemnification), Clause 9 (Security), Clause 10 (Limitation of Liability), Clause 11 (Confidentiality), Clause 13 (Intellectual Property Rights), Clause 15 (Rights and Remedies) and Clause 16 (General).
  13. INTELLECTUAL PROPERTY RIGHTS

    1. As between you and us, you own and reserve all right, title and interest in Customer Applications, and any content originally transmitted by you or your End Users via our platforms or via the Customer Application (“Application Content”). You authorise us to use the content and Application Content to provide the Services and perform in accordance with this Agreement.
    2. MACROKIOSK owns and reserves all right, title and interest in and to the Services and all improvement, modifications and derivative work thereof.
    3. Except as explicitly granted herein, neither party is granted a licence or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other party or its affiliate without the express prior written authorisation of the other party.
  14. SUSPENSION

    1. Without prejudice to our other rights under this Agreement, we shall be entitled to suspend the Services (including the Short Code, account and/or keywords) immediately upon notice for cause if:

      1. You and your End Users violate (or give us reason to believe you have violated) any provision of this Agreement;
      2. There is a reason to believe that your use of the Services brings the reputation or good name of MACROKIOSK (or any of MACROKIOSK’s affiliates) into disrepute;
      3. We are obliged to comply with an order, instruction, director or request of a Government Body or Service Providers for the suspension;
      4. The Service Providers, upon which the provisions of our Services is dependant on, suspends provision of its services to us;
      5. We determine, in our sole discretion, that providing the Services is prohibited by applicable Laws, or it has become impracticable or unfeasible for any legal or regulatory reason to provide the Services;
      6. There is a reason to believe your use of Services is fraudulent or negatively impacting the operating capability of the Services;
      7. Information in your account is untrue, inaccurate or incomplete; or
      8. You fail to pay undisputed fees after the due date for payment provided that at least one (1) payment reminder has been given by us to you.

    2. We will use commercially reasonable efforts under the circumstances to (i) provide you with notice and an opportunity to remedy such violation prior to any such suspension; (ii) where practicable, limit the suspension based on the circumstances leading to the suspension (e.g. to certain phone numbers, sub-accounts, or other subset of traffic); and (iii) remove the suspension as quickly as reasonable practicable after the circumstances leading to the suspension have been resolved.
    3. In the event any immediate suspension is required to safeguard our licence or to prevent us from being in breach of any applicable Laws or in emergency circumstances beyond our reasonable control, notification will only be provided to you after we have suspended the Services.
    4. We will not be liable for any loss, damage and or cost sustained, suffered or incurred by you resulting from the suspension under this Clause.
  15. RIGHTS AND REMEDIES

    In the event of any breach of any warranty, condition, undertaking or other obligation by any party under this Agreement, the other party shall, in addition to all rights and remedies available to the other Party under this Agreement, be entitled to all rights and remedies available to the other party at law or in equity, including but not limited to the right to claim damages which the other party has suffered or incurred and/or the right to specific performance or injunction. Any remedy or right conferred on the other party shall be in addition to, and shall be without prejudice to, all other rights and remedies available to the party.

  16. GENERAL

    1. Notices

      1. Any notices or communication under or in connection with this Agreement shall be in writing in English and shall be delivered personally, or sent by pre-paid post or recorded delivery, by commercial courier or by email.
      2. Any notice or communication may be deemed to have been duly received:

        1. If delivered personally, when left at the business address;
        2. If delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
        3. If delivered by pre-paid post or recorded delivery, at 9.00 am on the third business day after posting; or
        4. If delivered by email, when confirmation of its transmission has been recorded by the sender’s email delivery system (provided that the sender does not receive a delivery failure report).

      3. Any notices to us shall be delivered to our business address as specified in this Agreement or to the following addresses if sent via email:
      4. Any notices to you shall be delivered to your contact details in the Sales Order or the email address of your personnel whom we last exchanged correspondences with pertaining to the Services.
    2. Severability

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

    3. Assignment

      1. You shall not assign or transfer this Agreement without our prior written consent. We may consent to the assignment or novation of this Agreement subject to the terms and conditions we choose to impose.
      2. We shall be entitled to assign rights and obligations wholly or partly to our subsidiaries or associate companies.
    4. Third party rights

      This Agreement do not create or confer any rights or benefits enforceable by any person not a party to it.

    5. Variation

      1. We may or as necessitated or advised by the Government Body, Service Providers or any authority having jurisdiction over the matters herein, vary this Agreement by submitting a copy of the proposed variations to you specifying a reasonable period (“Said Timeframe”) in which you are to provide written notice of acceptance or rejection of the proposed variations (collectively “Regulated Variations”). If you accept the Regulated Variations, this Agreement shall be deemed to be so amended from the date of such acceptance. If you reject the Regulated Variations or fail to revert within the Said Timeframe, we shall be entitled to terminate this Agreement immediately notwithstanding any provisions in this Agreement.
      2. Other variations of this Agreement other than the Regulated Variations shall only take effect upon consent of both parties.
    6. Release, indulgence and waiver

      1. Waiver of any breach of this Agreement or of any right, power, authority, discretion or remedy arising upon a breach of or default under this Agreement, must be in writing and signed by the party granting the waiver.
      2. No failure on the part of a party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement shall operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
      3. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies (whether provided by law or otherwise).
    7. Dispute Resolution

      1. This Agreement shall be governed by Malaysian law, without regard to the choice or conflicts of law provisions of any jurisdiction.
      2. Before bringing a formal legal case, please first try contacting our legal at legal@macrokiosk.com. Most disputes can be resolved that way.
      3. If a dispute, claim, controversy related to this Agreement or the Services (collectively, “Disputes”) cannot be resolved through our legal, each party’s senior representatives will engage in good faith negotiations with other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, the parties may refer the Disputes to the Asian International Arbitration Centre (“AIAC”), in accordance with the Rules of the AIAC as modified or amended from time to time (the “Rules”) by a sole arbitrator appointed by the mutual agreement of you and MACROKIOSK (the “Arbitrator”). If you and MACROKIOSK are unable to agree on an arbitrator, the Arbitrator shall be appointed by the President of AIAC in accordance with the Rules. The seat and venue of the arbitration shall be Kuala Lumpur, in the English language and the fees of the Arbitrator shall be borne equally by you and MACROKIOSK, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law.
    8. Force Majeure

      1. No failure, delay or default in performance of any obligation of a party shall constitute a breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including, without limitation, changes in laws or regulations of Malaysia, acts of God, strikes, lock-outs or other industrial disturbances, wars, insurrection, riots, epidemics, landslides, earthquakes, storms, lightning, flood, civil disturbances, explosions, loss or malfunctions of utilities, communications or computer (software and hardware) services, power failures, and any other events not within the control of either party and which by the exercise of due diligence neither party is able to overcome;
      2. If such failure, delay or default in performance exceeds thirty (30) days, either party may immediately terminate this Agreement with notice to the other party.
    9. Successors and Assigns

      These Terms will be binding on both you and MACROKIOSK and each of our successors and assigns.

    10. Costs

      Each party to this Agreement shall bear its costs and expenses in relation to this Agreement.

    11. Relationship

      You and MACROKIOSK are independent contractors in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture or franchise.

    12. Entire Agreement

      Except as provided in this Agreement, applicable Sales Order or other terms incorporated by reference into this Agreement, this Agreement supersede all prior understandings, promises or agreements, oral or written, made between you and MACROKIOSK and constitute the entire understanding between you and MACROKIOSK. Any purchase order or similar document provided by you shall have no effect and shall be non-binding against MACROKIOSK.

    13. Prevailing language

      The Parties agree that (i) the Agreement in such other languages other than the English language shall only be for references purposes and have no validity; and (ii) in the event of inconsistency between the Agreement in English language and the Agreement in such other languages, the Agreement in English language shall prevail and shall be final and conclusive against the Parties.

APPENDIX 1 - DEFINITIONS

In this Agreement, the following words shall have the meanings ascribed below:

“Account” means the account (and sub-account(s)) created by MACROKIOSK for CLIENT to access and use the Services.

“Adverse API Change” means the change of MACROKIOSK API which materially and negatively impacts your use of the Services.

“Anti-Bribery and Corruption Laws” means Malaysian Anti-Corruption Commission Act 2009, subsequent amendments to the Act, all guidelines issued by relevant authorities pertaining to the same, and any other laws or regulations of any jurisdiction, relating to anti-bribery or corruption.

“content” means any message, information data, voice, picture, video, rich content such as wallpapers, ringtones, games, WAP links, WAP billings, voice contents, smartphone applications and such other text or multimedia messages data or messages provided, transmitted or disseminated by or on behalf of the Customer, including any third party of Customer, via the Services.

“Customer Application” means your creation of an original application that interfaces with the Services.

“End User” means your intended recipient (including private person and legal entity) of the services you offer.

“Fees” means the commercial prices, charges, fees, costs or revenue share for each Services more particularly set out in each Sales Order.

“Government Body” means foreign, federal, state, municipal, political subdivision or other governmental department, commission, regulatory authority or board, bureau or agency or instrumentality.

“Laws” means statutes, codes, ordinance, enactments, by-laws, rules, regulation, regulatory requirements, directives, circulars, policies, guidelines, orders, instruments issued by the Government Body such as Malaysian Communications and Multimedia Commission, and the like whether or not having the force of law, as may be applicable from time to time.

“MACROKIOSK API” means the application programming interface of MACROKIOSK.

“Services” means the communication, payment and/or relationship solutions including access to any MACROKIOSK API that you order under the Sales Order.

“Service Providers” means the mobile operators, inter link providers, over-the-top (OTT) service providers and/or such other providers MACROKIOSK connects to for the purposes of the Services.