Legal Resources

APIGATEHUB GENERAL TERMS

This General Terms (Northbound) applies to all Partners subscribing to any Service offered by Apigate Sdn Bhd (Company No. 1259684-W). By signing the Service Order Form, you are deemed to have read and accepted the term and conditions stated herein. Apigate Sdn Bhd may amend and update the terms from time to time and Apigate Sdn Bhd may give you notice of such change via our website. You hereby agree that your continuous use and access of the Service shall signify your acceptance to the changes and any updates to the terms and conditions mentioned therein.

1. THE BASICS

1.1  Apigate Sdn Bhd has developed a mobile internet and fulfilment exchange, as described as the “ApigateHub Exchange”, for our Southbound Partner (which include but not limited to mobile network operators) to expose certain network capabilities for you to make use of those network capabilities.

1.2 These are the General Terms that apply to any Services you acquire from Apigate Sdn. Bhd. This General Terms will be applicable for Apigate Sdn Bhd., its affiliates, its subsidiaries, its successors and permitted assigns (hereinafter referred to as (“ Apigate”).

1.3  The Service that you acquire has its own Service Order Form and Service Catalogue including but not limited to Apigate’s Policies and as well as other related documents with more detailed terms (“Incorporated Documents”). Parties agree that the entity within Apigate Group of Companies that will be providing the services to you shall be specified in each Service Order Form.

1.4 These General Terms, the Service Order Form and the Incorporated Documents would be referred to as “the Agreement”.

1.5  If there is a conflict between the documents, the order of priority, highest first, is:

(a) the Service Order Form;

(b)  the General Terms; and

(c) any Incorporated Document,

2.  WHAT YOU HAVE TO OBSERVE

2.1 You must comply with Apigate’s Policies and Rules (as provided to you) to the extent that they are applicable to the receipt of the Services.

2.2  You must provide, operate, maintain and support, in good functioning condition, all your System and Materials required to interface with Apigate’s Systems and Materials in order for

Apigate to provide the Services to you and/or You to provide the Service, as the case may be. 

2.3 You must act with all proper diligence and in good faith and in a manner, which is consistent with this Agreement.

2.4  You agree to provide Apigate with access to all documentation, systems, and other resources reasonably required by Apigate under this Agreement.

2.5   In relation to any Service provided in accordance with this Agreement, you:

a. must ensure that a standard of care, skill, diligence, prudence and foresight is provided that would reasonably be expected of a competent provider of services, activities and responsibilities similar to the Services (including in relation to technical and organisational security); and

b. must ensure that a quality of Services that is equivalent to good industry standards and practices relevant to the Services.

3.  RESTRICTIONS AND LIMITATIONS THAT YOU HAVE TO COMPLY

3.1 Your relationship in relation to the ApigateHub Exchange must be with Apigate only and Apigate will contract with and have the sole relationship with Southbound Partner of the Services. You must not enter into any contracts or arrangements relating to the Services directly with any of the Southbound Partner of the Services. If you are a consumer of the Services, you must not resell the Service to a third party. Notwithstanding the foregoing, this clause does not in any way prevent you from making the Services consumed available to your subscribers or end users;

3.2 You must ensure that the Services are not targeted for use by your subscribers or end users outside of the relevant Territory. You must ensure that all reasonable steps are taken to ensure that other digital rights management technologies applied to the Services are included and maintained and apply additional technologies to protect against the use of those Services outside of the relevant Territory;

3.3 You must not commit or permit any copying, reselling, altering, modifying, creating of derivative works, reverse engineering, decompiling, translating, disassembling, adding, attaching or extracting source code or any Confidential Information in connection with the ApigateHub Exchange or any other Systems, Materials and Data prepared, devised, written or provided in whole or in part by or on behalf of Apigate or any third party in connection with any Services; and

3.4 You must not permit any personnel, agents, third party contractors or other third parties under your control to, by act or omission or in any manner, encumber, impair or otherwise prejudicially affect the ApigateHub Exchange or any other Systems, Materials and Data prepared, devised, written or provided in whole or in part by or on behalf of Apigate or any third party in connection with any Services. This may be done by having in place security measures, systems, applications and processes in accordance with good industry standards and practices.

3.5 You must ensure that, in relation to the consumption of Services by you or by your subscribers or end users, no act or omission is committed or permitted by you which could reasonably be considered to be or likely to be:

(a)   unsolicited, unauthorised, inappropriate, offensive, obscene, indecent, defamatory, abusive, harassing or threatening;

(b)  damaging, disruptive, destabilizing, destructive, corruptive, intrusive, probing, circumventing or dangerous;

(c)   infringing a third party’s rights; or

(d)  adversely affecting or damaging of the goodwill or reputation of Apigate.

3.6  You (including any personnel, agents, third party contractors or other third parties under your control) must not make any public statement or act in any manner which is reasonably likely to disparage, criticise, or bring into disrepute Apigate or the other parties involved in enabling the Services.

4 WHAT WE NEED TO COMPLY

4.1 Both parties agree to ensure its compliance with applicable Laws in connection with this Agreement and the Services and each party warrants and represents that it has obtained and will maintain all legal, regulatory and governmental approvals and consents required from the relevant authorities in Malaysia, or in your case, in the Territory, in relation to its respective obligations under this Agreement.

4.2 You further warrant and represent that you have obtained and will maintain all necessary approvals, licences, sub-licences, rights and consents from all other necessary third parties, in respect of the consumption of Services. 

5 DATA PROTECTION

5.1 You shall at all times comply with the  Personal Data Protection Policy .pdf in regard to the Personal Data.

6  THE SERVICES

6.1 You may only consume a Service or provide a Service to your subscribers or end users within one of your service offerings (“Service Offering”), within the agreed scope of Service consumption set out in the applicable Service Order Form and this Agreement (“Scope”). If you wish to consume the Services or provide a Service Offering outside of the agreed Scope, then you must notify Apigate of amended or new scope, and Apigate may require you (in its sole discretion) to utilise the Change Control Procedure or to enter into a new Service Order Form.

6.2 You may from time to time update any of your Service Offerings for a particular Service (for example, by releasing a new version of a mobile application), provided that such update does not affect your Systems’ integration with ApigateHub Exchange and Apigate’s Systems (as applicable) in any way and your receipt of such Services continues to comply with the applicable API specification and all other requirements under this Agreement for that particular Service. All other changes to your Service Offerings must go through the Change Control Procedure.

6.3 If you wish to consume a new Service after you have entered into this Agreement, you will be required to enter into a new Service Order Form and thereupon, the new Service Order Form will form part of this Agreement.

7  INTELLECTUAL PROPERTY RIGHTS ("IPR”)

7.1  You shall at all times comply with the Intellectual Property Rights Policy.pdf in regard to the IPR.

8   KEEPING THINGS CONFIDENTIAL

8.1 Confidentiality:

(a)   We will both keep all Confidential Information confidential;

(b)  We will both take adequate and appropriate steps to notify our employees and the third parties of their obligations to comply with this Agreement.

(c)   We both agree that either party may disclose this Agreement to its related companies, solicitors, auditors, insurers and accountants to the extent necessary for that party to perform its obligations or exercise its rights under this Agreement.

(d)  This confidentiality clause shall survive for 2 (two) years from the termination or expiry of this Agreement for any reason.  

9 PUBLICITY

9.1 Each party may only make a public announcement or communication in connection with this Agreement with the prior written consent of the other party and the relevant third party’s contractors, except that the other party may make a public announcement or communication if required by Law, court order, governmental authority or the listing rules of any stock exchange of which the receiving party or its related companies are bound.    

10 WE BOTH REPRESENT AND WARRANT

10.1 The execution, delivery and performance of this Agreement have been duly authorised by all necessary corporate and other actions and approvals, and that this Agreement constitutes a legal, valid and binding obligation of that party.

10.2 Both parties have not relied on any representation made by the other party which has not been stated expressly in this Agreement. Except as specified in this clause, any condition or warranty is expressly excluded save in the case of fraudulent misrepresentation.

11 IF SOMETHING GOES WRONG

11.1 You shall indemnify and hold harmless Apigate in respect of Losses suffered or incurred by Apigate in connection with:

(a) the consumption of Services by any End User (as the case may be);

(b) your provision or consumption of the Services (as the case may be) via or in connection with the ApigateHub Exchange or any act or omission by you relating thereto, including in connection with third party claims (as the case may be);

(c) breach of any part of this Agreement by you, or violation or your failure to comply with our privacy and data protection obligations or confidentiality obligations or applicable Laws by you or any End User;

(d) or arising from any act or omission by you or any End User which results in Apigate breaching its agreements with other third-party contractors relevant to the ApigateHub Exchange or the Services; or

(e) a dispute between you and any End User; and/or

(f) an Infringement Claim.

11.2  We both shall indemnify and hold harmless the other party in respect of Losses suffered or incurred by either party, arising from any claim that the intellectual property owned by either party infringes any Intellectual Property Rights of a third party. 

11.3 You hereby agree to hold Apigate harmless against any claims or penalties that may be imposed on Apigate by reason of your failure to comply with your obligations under the tax Laws of your jurisdiction.

11.4 Each Party’s entire liability to the other Party for all claims, demands and proceedings arising under or in connection with this Agreement (whether for negligence or any other tort, breach of contract, breach of statutory duty, misrepresentation, personal repudiatory breach, or otherwise) will be limited to an aggregate amount equal to the Contract Price.

11.5 In no event shall a party be liable to the other party under or in connection with this Agreement (whether for negligence or any other tort, breach of contract, breach of statutory duty, misrepresentation, personal repudiatory breach, or otherwise) for any indirect or consequential damages, even if the first party has been advised of the possibility of such damages, or for any damages for loss of profit, goodwill, business opportunity, anticipated savings or data.

11.6  The ApigateHub Exchange is hosted and managed on servers operated by a third-party provider. Notwithstanding anything to the contrary in this Agreement, Apigate excludes all liability to you (whether for negligence or any other tort, breach of contract, breach of statutory duty, misrepresentation, personal repudiatory breach, or otherwise) for any and all Losses (including direct, indirect and consequential damages) arising out of or in connection with this Agreement, the ApigateHub Exchange and the Services, that are caused directly or indirectly by any act or omission by the third party provider or any default, error, unavailability or failure of the third party services.

11.7  Any claims by you in relation to this Agreement shall be made against Apigate, and not any relevant third party.

11.8 You acknowledge that:

(a)  Apigate shall use and rely upon confirmations, receipts, information or reports provided by third parties in connection with the ApigateHub Exchange. As such, Apigate gives no warranty and makes no representation as to the accuracy, completeness or timeliness of such data or information;

(b)  Apigate gives no warranty and makes no representation as to the functionality or ability of the ApigateHub Exchange, any Systems, Materials or Data (or any component thereof) provided by or on behalf of Apigate, or any Services consumed by you, to meet any minimum transaction volumes or forecasts or always be available, uninterrupted, error free, secure, free from harmful components, non-infringing, or to be fit for purpose; and

(c)  all such warranties and representations are hereby excluded to the extent permitted by applicable Law.

11.9  ApigateHub Exchange, any Systems, Materials or Data (or any component thereof) provided by or on behalf of Apigate, or any Services consumed by you, may not be available during any periods of maintenance, upgrades or Force Majeure Events. 

11.10  The limitations and exclusions of liability anywhere in this Agreement will not operate to restrict or exclude:

(a)  a party's liability to make any payment of fees and interest on late payment of fees to the other party in accordance with this Agreement;

(b)  a party’s liability for breach of the parts of this Agreement titled ‘Data Protection’, ‘Restrictions and Limitations That You Need to Comply’, ‘Publicity’ or ‘Keeping Things Confidential’;

(c)  any obligation by you to indemnify any person under this Agreement;

(d)  your liability for claims, actions, directions, objections, investigations, requirements, fines, penalties, sanctions or other remedies from any relevant authority relating to a failure by you to comply with applicable Laws or Authorisations or any act or omission by you putting Apigate in breach of applicable Laws or Authorisations;

(e)  a party's liability for that party's fraud;

(f)   a party's liability for death or personal injury caused by that party; or

(g)  any liability that cannot be excluded under mandatory applicable Law.

12 REGULATORY CHANGE

12.1 If a regulatory change causes you not to be able to perform your obligations under this Agreement, you shall notify us promptly in writing.

12.2  If there is a regulatory change or obligations of a party cannot be performed without breaching applicable Law, or any provision of this Agreement is subjected to substantial objection, investigation or requirement by any relevant authority, the parties must promptly negotiate in good faith to agree a written variation to this Agreement which:

(a)   removes the affected terms (and the terms will cease to have further effect; and

(b)  allows that first party to perform obligations without breaching any applicable Laws or deals with that provision, objection, investigation or requirement in a manner which substantially gives effect to the parties' intentions at the commencement date of the affected Provision, and all other Provisions of this Agreement will remain in full force and effect.

12.3  If the parties are unable to agree an acceptable variation, then the affected party will have the right to terminate this Agreement or any one or more affected Services by serving on the other party 60 (sixty) days’ notice in writing.

13 WHEN WILL THE SERVICE BE SUSPENDED OR TERMINATED

13.1 Apigate may suspend, and/or terminate your consumption of one or more of the Services, or the provision and use of the ApigateHub Exchange by written notice to you at any time:

(a) if you are in breach of this Agreement (including any failure to pay an invoice by the due date), or Apigate reasonably suspects a breach of this Agreement or a misuse of the Service or ApigateHub Exchange;

(b) in the event the Services or provision and use of the ApigateHub Exchange is no longer practical or feasible;

(c)  in circumstances where there is a third party intellectual property claim against you, Apigate or any third party that is relevant to the ApigateHub Exchange, Services or any rights or obligations under this Agreement; or 

(d) where suspension or termination is required in order for Apigate to comply with any injunction or other court order issued against it or any relevant third party relating to the provision and use of the ApigateHub Exchange; or

(e) if Apigate’s third party provider, for any reason, suspends provision of the third party services or otherwise ceases to provide (temporarily or otherwise) the third party services.

13.2  If Apigate exercises its right to suspend pursuant to Clause 13.1, then Apigate will use reasonable endeavours to resume the provision and use of the ApigateHub Exchange, or the consumption of the affected Services within a reasonable period of time, which is commercially practicable and feasible in all of the circumstances.

13.3 Only if Apigate is unable to resume provision and use of ApigateHub Exchange, or consumption of the affected Services (as applicable), then Apigate may terminate the affected Services or this Agreement upon written notice to you. Neither party shall have any claims against each other arising from a termination pursuant to this Clause.   

14 WHEN THE TERM STARTS

14.1 This General Terms shall be effective from the date of the Service Order Form until it is terminated.

14.2  Each Services shall start on the date as set out in the Service Order Form.

15  WHEN WILL THE CONTRACT ENDS

15.1 A party (“Terminating Party”) may terminate this Agreement or any one or more Services immediately by providing written notice to the other party to that effect if:

(a)   that other party becomes insolvent, or makes an assignment for the general benefit of creditors, or any proceedings are commenced by or against that other party under insolvency Laws; 

(b)  proceedings for the appointment of a custodian, receiver, receiver manager or any other official with similar powers for that other party are commenced; or

(c)   that other party ceases to carry on business.

15.1 Apigate may terminate this Agreement or any one or more Services upon 30 (thirty) days’ notice in the event a Change in Control occurs. You must promptly notify Apigate if a Change in Control of you occurs.

15.2  A party may terminate this Agreement or any one or more Services immediately by providing notice to the other party if that other party:

(a) has not performed any material covenant; or

(b) has breached any material term of this Agreement or any material term of the Service Order Forms,

and such failure to perform or breach is:

(i) incapable of cure; or

(ii) capable of cure, but the other party fails to cure the failure to perform or breach within 30 (thirty) days from receipt of notice by the non-defaulting party (or such additional cure period as the non-defaulting party may authorize).

15.3  If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 60 (sixty) continuous days, the other party may immediately terminate this Agreement or any one or more Services by providing notice to the other party.

15.4  A party may terminate this Agreement immediately by providing notice to the other party if all Service Order Forms have expired or if all Services have otherwise been terminated in accordance with this Agreement.

15.5  A party may terminate this Agreement or any one or more Services upon 30 (thirty) days’ notice to the other party without assigning any reason whatsoever.  

15.6  Precedence in Termination:

(a)   Termination of this Agreement will automatically terminate all Services and Service Order Forms.

(b)  Termination of any Services will automatically terminate any Service Order Forms covering those Services.

(c)   Subject to the foregoing, termination of any Services or Service Order Forms will not terminate this Agreement.

15.7  Return or destruction of Confidential Information:

(a)   Either Party must as soon as practicable on expiry or termination of this Agreement or any part of this Agreement:

(i)    return to the other party or (if upon request of one Party) destroy;

(ii)   certify in writing to the other Party the destruction of; and/or  

(iii)  permit an employee of either Party to witness the destruction of, all Confidential Information, Materials and information containing or comprising Intellectual Property Rights owned by or licensed to either Party or Data and/or Personal Data used under or in connection with the expired or terminated Agreement other than one copy of any notes and other records of the Confidential Information that you are required by Law to retain.

15.8  For the avoidance of doubt, the obligations on confidentiality as provided in this Agreement shall continue to apply to any such Confidential Information retained by you.

15.9  Survival of clauses:

(a)   The following shall survive the termination or expiry of this Agreement or any part of this Agreement:

(i)    the relevant parts of this Agreement in Clauses 5 (Data Protection), 7 (Intellectual Property Rights), 8 (Keeping Things Confidential),9 (Publicity), 11 (If Something Goes Wrong), 14 (When the Contract Starts) , 15 ( When will the Contract Ends) , 16 (Transferring to another Parties), 17 (Entire Agreement), 18 (Choice of Law), 19 ( Settling Dispute), 20 (Notices), 27 (General) and 28 (Defined Terms); and

(ii)   as well as any other term which by its meaning or nature may be understood to survive termination or expiry of this Agreement or any part of this Agreement.

(b)  Except as expressly provided otherwise in this Agreement, termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

16  TRANSFERRING TO ANOTHER PARTY

16.1 Neither Party may assign or novate without prior written consent of the other party except that either Party from time to time assign or novate this Agreement, in whole or in part, to any entity within each Party’s group of companies by giving notice to the other party.  

16.2 If a party subcontracts any of its obligations under this Agreement, then that party will remain fully responsible and liable for the performance of its obligations.

17  ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations and agreements, oral or written, save in the case of fraudulent misrepresentation.

18  CHOICE OF LAWS AND COURTS

The Laws of Singapore will apply to the Agreement and any disputes or claims in connection with it or our relationship, including non-contractual ones.

19  SETTLING DISPUTES

19.1 We will both do what we reasonably can to settle any dispute or claim that occurs under or in relation to this Agreement, and to avoid having to get the courts or regulatory authorities involved.

19.2  We will both use the following dispute resolution process:

a. whichever of us is affected will provide Notice of the complaint that clearly sets out the full facts and includes relevant supporting documents;

b.  we will both use reasonable endeavours to settle the dispute within 7 days;

c.  if the dispute is not settled after 7 days (or any other period agreed by both of us in writing), then the Chief Executive Officer of Apigate (or person with equivalent level of seniority) and your counterpart (or person with equivalent level of seniority) shall meet to resolve the Dispute; and

d. if the dispute is still not settled 7 days after it is escalated, or no meeting for the purpose of settling the Dispute has taken place within 21 (twenty-one) days after the service of a Dispute Notice, the Dispute shall then be referred to and shall be finally and exclusively resolved by arbitration under the rules of the Asian International Arbitration Centre (AIAC) in force as at the date of application for arbitration ("AIAC Arbitration Rules 2018"). The AIAC Rules are hereby incorporated by reference into this Agreement.

19.3 The arbitration award rendered shall be in writing and shall set out the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.

19.4 Arbitration shall be conducted before a sole arbitrator. The seat, or legal place of arbitration, shall be Kuala Lumpur. The language of the arbitration shall be English. All documents submitted in connection with the proceedings shall be in the English language, or, if in another language, accompanied by an English translation.

19.5 We both agree that the arbitration award shall be final and binding on both of us and may be enforced in any court of competent jurisdiction.

19.6 Without prejudice to the above provisions, both of us may seek injunctive relief, including restraining orders and preliminary injunctions, in any court of competent jurisdiction, and either party may request that a court refers the proceedings to arbitration in accordance with this Agreement.

20 NOTICES

Any notice, invoice, request or other document or communication to be given under this Agreement shall be in writing and in the English language and may be given or sent by:

(a) hand delivery or courier, in which case it will be deemed to have been delivered immediately upon delivery;

(b) registered post, express or other fast postal service, in which case it will be deemed to have been delivered within 7 (seven) days of it being posted; or

(c) electronic mail, in which case it will be deemed to have been delivered at the time that it was sent as evidenced by a transmission report generated by the computer system,

to the other party at the address or email address set out in this Agreement, as may be updated from time to time by the other party.

21 NO EXCLUSIVITY OR MINIMUM COMMITMENT

Apigate may admit any number of third parties to consume Services and your involvement in connection with this Agreement is non-exclusive unless otherwise expressly provided in this Agreement.

22 RECORDS AND REPORTING

22.1 You must keep clear, understandable, accurate, complete and up to date records and supporting information for all transactions relating to the Services consumed. You must:

(a) make such transaction records and information available, as reasonably required by Apigate for inspection, verification and audit purposes promptly upon request; and

(b)  provide such other reports as set out in this Agreement, and as otherwise reasonably required by Apigate from time to time relating to the transactions, promptly upon request. 

23  PAYMENT

23.1  Payment terms shall be set out in the relevant Service Order Form.       

23.2  Each party shall bear its own costs and expenses as set out in this Agreement.

23.3  Each party agrees that it must not require the other party or any relevant third party to sell products or services at a particular price.

23.4  Each party may invoice the other party for any applicable amount under this Agreement. Failure by a party to raise an invoice will not prejudice or waive its right to later invoice the relevant amount.

23.5  Each party may be required to provide relevant information evidencing any amounts claimed in accordance with this Agreement.

23.6  Each amount invoiced must be paid within 30 (thirty) days following the date of receipt of the invoice if it is not disputed unless otherwise expressly provided in this Agreement or in the Service Order Form. Each party agrees that in the event the invoice is less than or equivalent to USD250.00 or RM1,000 (“Minimum Sum”) depending on the agreed currency in the Service Order Form, the settlement of such sum shall be paid when the cumulative amount of the invoice is more than the Minimum Sum or at the end of the relevant quarter of the year, whichever is earlier. Each Party shall bear its own bank transfer or finance charges as applicable.

21.7 In the event of any dispute to any amounts payable in accordance with this Agreement, such disputes shall not be a reason to withhold or deny any undisputed payments. Such disputes shall be resolved in accordance with the dispute resolution procedures as provided for in this Agreement.

21.8 The rate card for Services is set out in the relevant Service Order Form.

21.9 All payments you or Apigate make under this Agreement shall be made in US Dollars unless otherwise agreed in a Service Order Form.

21.10 The rate of exchange to be applied to convert any payments to be made under this Agreement from a foreign currency into Malaysian Ringgit  and/or local currency  rate to be applied for Apigate to convert the transaction currency into US Dollars, shall be the rate of exchange published by Bloomberg Generic Composite rate for the purchase of Malaysian Ringgit and/or local currency with such foreign currency as at the close of business day of the particular transaction month.

21.11 Apigate shall not be liable for any losses caused by exchange rate fluctuations or by any failure to remit or convert funds to Malaysian Ringgit at a particular time or at a more favourable rate of exchange than actually used.

21.12 You shall bear any operation costs incurred by Apigate during the on-boarding process subject to prior notice to you on such cost.

24  TAXES

24.1 Unless agreed otherwise in a Service Order Form, Apigate will not be responsible for any bad debts, unrecovered sums or withholding for tax purposes and Apigate will deduct any such bad debts, unrecovered sums or withholding for tax purposes from the monthly invoice issued to you.

24.2  Unless agreed otherwise in a Service Order Form, all payments must be made by you in accordance with this Agreement regardless of any bad debts, unrecovered sums or withholding for tax purposes and must be accounted for in full and any payment grossed up to make whole all amounts specified in this Agreement. 

24.3  Withholding tax

(a) If any payment under this Agreement is subject to any applicable taxes by the relevant authority under the Law in countries and jurisdiction which you are operating, and such tax is required to be withheld from the payment to Apigate, you are entitled to deduct any taxes payable from the gross payment and remit the amount to the tax authorities on behalf of Apigate.

(b) You shall then make payment of the fees to Apigate, less the sum deducted for tax in accordance with the terms and conditions of this Agreement.

(c) If Apigate is entitled to a preferential tax rate, Apigate may then furnish to you evidence of its tax residence status by way of letter or certificate issued by the relevant tax authority confirming Apigate’s tax residence status prior to you making its first payment to Apigate under this Agreement.

(d) You shall furnish to Apigate all applicable tax receipts within one (1) month from the date of payment.

24.4 Duties and other governmental or administrative charges and levies of any kind whatsoever arising from this Agreement, including sales, services, use, value‑added, goods and services or others ("Taxes") may be levied in addition to any payment for Services to be made in accordance with this Agreement and will be payable in accordance with this Agreement.

24.5 Where any service tax, goods and services tax, or tax of similar nature is applicable on any goods or services supplied under this Agreement imposed by the relevant Malaysian authorities, you shall pay for the appropriate service tax or goods and services tax, or tax of similar nature under each invoice, provided that Apigate has complied with the following:

(a) Apigate is duly licensed by the relevant Malaysian authorities to collect such service tax or goods and services tax, or tax of similar nature;

(b) the appropriate service tax or goods and services tax, or tax of similar nature for each invoice is included under the relevant invoice at the time of the issuance of the invoice; and

(c) all invoices provided by Apigate to you comply with the relevant Laws in respect of service tax or goods and services tax, or tax of similar nature enforced by the Malaysian authorities.

24.6 If Apigate is required to pay any Taxes to any relevant third party in connection with this Agreement, Apigate may pass through such Taxes which may be levied in addition to any payment for Services and other Taxes to be made in accordance with this Agreement and will be payable in accordance with this Agreement.

24.7  All other taxes shall be the responsibility of the relevant party in compliance with the prevailing tax treaty or tax regulations in any relevant country.

25 GOVERNANCE

25.1 Each party’s respective Commercial Representative will be as set out in the Service Order Form and Each Party may update the personal particulars accordingly.

25.2  Each party’s respective Service Representative for a particular Service will be as set out in the Service Order Form and Each Party may update the personal particulars accordingly.

25.3 The parties’ respective Commercial Representatives and Service Representatives (or their delegates) will meet on a quarterly basis to discuss the Services.  Via video conference or any such means as agreed by both parties.

26 UNFORESEEABLE EVENTS

26.1 A party shall not be responsible for any delay, interruption or failure that is caused, whether directly or indirectly, by:

(a) the other party, any government agency or a court of competent jurisdiction issuing any order, directive or instruction which affects the first party’s performance of such obligations;

(b) the other party failing, neglecting or omitting in performing its obligations under this Agreement, including performing its responsibilities in accordance with this Agreement in an efficient and timely manner; or

(c) the occurrence of a Force Majeure Event, which has a material impact on the performance of the relevant obligations of the first party.

26.2  If such an event occurs, the first party must:

(a)  notify the other party of the delay, interruption or failure;

(b) identify the specific nature of the delay, interruption or failure; and

(c)  comply with the reasonable instructions of the other party in relation to the delay, interruption or failure (including any requirement to develop and implement an action plan in relation to that delay, interruption or failure).

27 GENERAL

27.1 Severability: If any illegal, invalid or unenforceable part of the Contract would be legal, valid or enforceable if part of it were removed, we both will negotiate in good faith to change the Contract, so it reflects what we both originally intended as much as possible.  

27.2 Survival of Agreement: This General Terms is to be binding upon the parties and their respective successors.

27.3 Waiver: No delay or failure to exercise or enforce any right or provision of this Agreement is considered a waiver of that right, unless made in writing.

27.4  Relationship of the parties: The relationship of the Parties shall be as per the terms set out in this Agreement.

27.5 Set-off: Neither party shall be entitled to set off any amount payable under this Agreement, unless this Agreement expressly provides otherwise.

27.6 Costs: each party shall bear its own costs and expenses in connection with this Agreement.

27.7 Making changes to the Agreement: Any changes shall be in writing and executed by both parties.

27.8 Cooperation with third parties: You shall cooperate with, and provide any information requested by, any third parties engaged by Apigate in connection with this Agreement.

28 DEFINED TERMS

The defined terms are as defined in the Defined Terms.pdf

APIGATEHUB GENERAL TERMS

This General Terms (Southbound) applies to all Operators where Apigate Sdn Bhd (Company No. 1259684-W) procure the API service from. By signing the Service Order Form, you are deemed to have read and accepted the term and conditions stated herein. Apigate Sdn Bhd may amend and update the terms from time to time and Apigate Sdn Bhd may give you notice of such change via our website. You hereby agree that your continuous provision of the Service shall signify your acceptance to the changes and any updates to the terms the terms and conditions mentioned therein.

1. THE BASICS

1.1 Apigate Sdn Bhd has developed a mobile internet and fulfilment exchange, as described as the “ApigateHub Exchange”, for you (which includes but is not limited to mobile network operators) to expose certain network capabilities for our Northbound Partner to make use of those network capabilities.

1.2  These are the General Terms that apply to any Services you acquire from Apigate Sdn. Bhd. This General Terms will be applicable for Apigate Sdn Bhd., its affiliates, its subsidiaries, its successors and permitted assigns (hereinafter referred to as “Apigate”).

1.3  The Service that you provide has its own Service Order Form and Service Catalogue including but not limited to Apigate’s Policies and as well as other related documents with more detailed terms (“Incorporated Documents”). Parties agree that the entity within Apigate Group of Companies that will be procuring the services to you shall be specified in each Service Order Form.

1.4  These General Terms, the Service Order Form and the Incorporated Documents would be referred to as “the Agreement”.

1.5 If there is a conflict between the documents, the order of priority, highest first, is:

(a) the Service Order Form;

(b) the General Terms; and

(c) any Incorporated Document,

2.  WHAT YOU HAVE TO OBSERVE

2.1 You must comply with Apigate’s Policies and Rules (as provided to you) to the extent that they are applicable to the receipt of the Services.

2.2  You must provide, operate, maintain and support, in good functioning condition, all your System and Materials required to interface with Apigate’s Systems and Materials in order for Apigate to provide the Services to you and/or You to provide the Service, as the case may be. 

2.3 You must act with all proper diligence and in good faith and in a manner, which is consistent with this Agreement.

2.4  You agree to provide Apigate with access to all documentation, systems, and other resources reasonably required by Apigate under this Agreement.

2.5   In relation to any Service provided in accordance with this Agreement, you:

a. must ensure that a standard of care, skill, diligence, prudence and foresight is provided that would reasonably be expected of a competent provider of services, activities and responsibilities similar to the Services (including in relation to technical and organisational security); and

b. must ensure that a quality of Services that is equivalent to good industry standards and practices relevant to the Services.

3. RESTRICTIONS AND LIMITATIONS THAT YOU HAVE TO COMPLY

3.1 Your relationship in relation to the ApigateHub Exchange must be with Apigate only and Apigate will contract with and have the sole relationship with Northbound Partner of the Services. You must not enter into any contracts or arrangements relating to the Services directly with any of the Northbound Partner of the Services.

3.2  You must not commit or permit any copying, reselling, altering, modifying, creating of derivative works, reverse engineering, decompiling, translating, disassembling, adding, attaching or extracting source code or any Confidential Information in connection with the ApigateHub Exchange or any other Systems, Materials and Data prepared, devised, written or provided in whole or in part by or on behalf of Apigate or any third party in connection with any Services; and

3.3  You must not permit any personnel, agents, third party contractors or other third parties under your control to, by act or omission or in any manner, encumber, impair or otherwise prejudicially affect the ApigateHub Exchange or any other Systems, Materials and Data prepared, devised, written or provided in whole or in part by or on behalf of Apigate or any third party in connection with any Services. This may be done by having in place security measures, systems, applications and processes in accordance with good industry standards and practices.

3.4  You must ensure that, in relation to the provision of Services by you, no act or omission is committed or permitted by you which could reasonably be considered to be or likely to be:

(a)   unsolicited, unauthorised, inappropriate, offensive, obscene, indecent, defamatory, abusive, harassing or threatening;

(b)  damaging, disruptive, destabilizing, destructive, corruptive, intrusive, probing, circumventing or dangerous;

(c)   infringing a third party’s rights; or

(d)  adversely affecting or damaging of the goodwill or reputation of Apigate.

3.5  You (including any personnel, agents, third party contractors or other third parties under your control) must not make any public statement or act in any manner which is reasonably likely to disparage, criticise, or bring into disrepute Apigate or the other parties involved in enabling the Services.

4 WHAT WE NEED TO COMPLY

4.1 Both parties agree to ensure its compliance with applicable Laws in connection with this Agreement and the Services and each party warrants and represents that it has obtained and will maintain all legal, regulatory and governmental approvals and consents required from the relevant authorities in Malaysia, or in your case, in the Territory, in relation to its respective obligations under this Agreement.

4.2 You further warrant and represent that you have obtained and will maintain all necessary approvals, licenses, sub-licenses, rights and consents from all other necessary third parties, in respect of the provision of Services. 

5 DATA PROTECTION

5.1 You shall at all times comply with the  Personal Data Protection Policy .pdf in regard to the Personal Data.

6 THE SERVICES

6.1 Apigate may market and promote to third parties the Services referred to in the relevant Service Order Forms executed by you and Apigate.

6.2 If requested by Apigate in relation to a particular Northbound Partner, you will negotiate in good faith to agree a Service Order Form, within ten (10) days following such request and where agreed, Apigate and you must execute such form. You will not unreasonably withhold or delay your approval of such third party or a Service Order Form. You must provide to Apigate the Services (which refers to multiple Services, covered by multiple Service Catalogue) as referred to in the relevant Service Order Form.

6.3 You acknowledge and agree that Apigate or any agreed third party may, in combination with Apigate or the relevant third party's own work or services, resell, distribute or sub-license, directly or indirectly, those Services in accordance with this Agreement. Apigate or any agreed third party may offer those Services on a worldwide basis (as determined by Apigate) unless specified otherwise in the relevant Service Catalogue or Service Order Form.

7 PERFORMANCE MANAGEMENT

7.1 In relation to the Services, you must comply with the provisions of this Agreement including in relation to any milestones, service levels, quality standards and requirements or other performance management framework.

7.2 If a Service Catalogue or Service Order Form prescribes for liquidated damages, service credits or any other amounts relating to non-performance of the Services, such amounts will be promptly applied in any invoice or remittance advice between you and Apigate (or vice versa) relating to relevant products or services rendered or consumed (as applicable) by you.

7.3 The payment of liquidated damages, service credits or any other amounts referred to above:

(a) shall not relieve any obligations under this Agreement or liability in connection with this Agreement (notwithstanding such payments);

(b) are intended as an incentive to perform the obligations under this Agreement and to be a genuine pre-estimate of the Loss but not as a penalty; and

(c) to the extent involving any amount determined to be a penalty pursuant to this Agreement will have the amount of any such penalty removed from such liquidated damages, service credits or any other amounts.

7.4  You shall provide the Services in accordance with the service levels set out in ApigateHub Service Operation Reference (Southbound).

7.5  The Parties will each be available to provide assistance to each other in resolving service complaints, technical problems and all other issues related to the Services as set out in Apigate’s Policies and Rules and the ApigateHub Service Operations Reference (Southbound).

8 INTELLECTUAL PROPERTY RIGHTS ("IPR”)

8.1 You shall at all times comply with the Intellectual Property Rights Policy.pdf in regard to the IPR.

9  KEEPING THINGS CONFIDENTIAL

9.1 Confidentiality:

(a)   We will both keep all Confidential Information confidential;

(b)  We will both take adequate and appropriate steps to notify our employees and the third parties of their obligations to comply with this Agreement.

(c)   We both agree that either party may disclose this Agreement to its related companies, solicitors, auditors, insurers and accountants to the extent necessary for that party to perform its obligations or exercise its rights under this Agreement.

(d)  This confidentiality clause shall survive for 2 (two) years from the termination or expiry of this Agreement for any reason.  

10 PUBLICITY

10.1 Each party may only make a public announcement or communication in connection with this Agreement with the prior written consent of the other party and the relevant third party’s contractors, except that the other party may make a public announcement or communication if required by Law, court order, governmental authority or the listing rules of any stock exchange of which the receiving party or its related companies are bound.    

11 WE BOTH REPRESENT AND WARRANT

11.1 The execution, delivery and performance of this Agreement have been duly authorised by all necessary corporate and other actions and approvals, and that this Agreement constitutes a legal, valid and binding obligation of that party.

11.2 Both parties have not relied on any representation made by the other party which has not been stated expressly in this Agreement. Except as specified in this clause, any condition or warranty is expressly excluded save in the case of fraudulent misrepresentation.

12 IF SOMETHING GOES WRONG

12.1 You shall indemnify and hold harmless Apigate in respect of Losses suffered or incurred by Apigate in connection with:

(a) your provision of the Services via or in connection with the ApigateHub Exchange or any act or omission by you relating thereto, including in connection with third party claims;

(b) a failure by you to comply with your privacy and data protection obligations or confidentiality obligations or applicable Laws or Authorisations;

(c) any act or omission by you putting Apigate in breach of applicable Laws or Authorisations; and/or

(d) an Infringement Claim.

12.2  We both shall indemnify and hold harmless the other party in respect of Losses suffered or incurred by either party, arising from any claim that the intellectual property owned by either party infringes any Intellectual Property Rights of a third party. 

12.3   You hereby agree to hold Apigate harmless against any claims or penalties that may be imposed on Apigate by reason of your failure to comply with your obligations under the tax Laws of your jurisdiction.

12.4 Each Party’s entire liability to the other Party for all claims, demands and proceedings arising under or in connection with this Agreement (whether for negligence or any other tort, breach of contract, breach of statutory duty, misrepresentation, personal repudiatory breach, or otherwise) will be limited to an aggregate amount equal to the Contract Price.

12.5  In no event shall a party be liable to the other party under or in connection with this Agreement (whether for negligence or any other tort, breach of contract, breach of statutory duty, misrepresentation, personal repudiatory breach, or otherwise) for any indirect or consequential damages, even if the first party has been advised of the possibility of such damages, or for any damages for loss of profit, goodwill, business opportunity, anticipated savings or data.

12.6 The ApigateHub Exchange is hosted and managed on servers operated by a third-party provider. Notwithstanding anything to the contrary in this Agreement, Apigate excludes all liability to you (whether for negligence or any other tort, breach of contract, breach of statutory duty, misrepresentation, personal repudiatory breach, or otherwise) for any and all Losses (including direct, indirect and consequential damages) arising out of or in connection with this Agreement, the ApigateHub Exchange and the Services, that are caused directly or indirectly by any act or omission by the third party provider or any default, error, unavailability or failure of the third party services.

12.7 Any claims by you in relation to this Agreement shall be made against Apigate, and not any relevant third party.

12.8 You acknowledge that:

(a)   Apigate shall use and rely upon confirmations, receipts, information or reports provided by third parties in connection with the ApigateHub Exchange. As such, Apigate gives no warranty and makes no representation as to the accuracy, completeness or timeliness of such data or information;

(b)  Apigate gives no warranty and makes no representation as to the functionality or ability of the ApigateHub Exchange, any Systems, Materials or Data (or any component thereof) provided by or on behalf of Apigate, or any Services consumed by you, to meet any minimum transaction volumes or forecasts or always be available, uninterrupted, error free, secure, free from harmful components, non-infringing, or to be fit for purpose; and

(c) all such warranties and representations are hereby excluded to the extent permitted by applicable Law.

12.9 ApigateHub Exchange, any Systems, Materials or Data (or any component thereof) provided by or on behalf of Apigate, or any Services consumed by you, may not be available during any periods of maintenance, upgrades or Force Majeure Events. 

12.10  The limitations and exclusions of liability anywhere in this Agreement will not operate to restrict or exclude:

(a)   a party's liability to make any payment of fees and interest on late payment of fees to the other party in accordance with this Agreement;

(b)  a party’s liability for breach of the parts of this Agreement titled ‘Data Protection’, ‘Restrictions and Limitations That You Need to Comply’, ‘Publicity’ or ‘Keeping Things Confidential’;

(c)   any obligation by you to indemnify any person under this Agreement;

(d)  your liability for claims, actions, directions, objections, investigations, requirements, fines, penalties, sanctions or other remedies from any relevant authority relating to a failure by you to comply with applicable Laws or Authorisations or any act or omission by you putting Apigate in breach of applicable Laws or Authorisations;

(e)  a party's liability for that party's fraud;

(f)   a party's liability for death or personal injury caused by that party; or

(g)   any liability that cannot be excluded under mandatory applicable Law.

13  REGULATORY CHANGE

13.1 If a regulatory change causes you not to be able to perform your obligations under this Agreement, you shall notify us promptly in writing.

13.2  If there is a regulatory change or obligations of a party cannot be performed without breaching applicable Law, or any provision of this Agreement is subjected to substantial objection, investigation or requirement by any relevant authority, the parties must promptly negotiate in good faith to agree a written variation to this Agreement which:

(a)  removes the affected terms (and the terms will cease to have further effect; and

(b)  allows that first party to perform obligations without breaching any applicable Laws or deals with that provision, objection, investigation or requirement in a manner which substantially gives effect to the parties' intentions at the commencement date of the affected Provision, and all other Provisions of this Agreement will remain in full force and effect.

13.3  If the parties are unable to agree an acceptable variation, then the affected party will have the right to terminate this Agreement or any one or more affected Services by serving on the other party 60 (sixty) days’ notice in writing.

14 WHEN WILL THE SERVICE BE SUSPENDED OR TERMINATED

14.1 Apigate may suspend, and/or terminate your provision of one or more of the Services, or the provision and use of the ApigateHub Exchange by written notice to you at any time:

(a) if you are in breach of this Agreement (including any failure to pay an invoice by the due date), or Apigate reasonably suspects a breach of this Agreement or a misuse of the Service or ApigateHub Exchange;

(b) in the event the Services or provision and use of the ApigateHub Exchange is no longer practical or feasible;

(c)  in circumstances where there is a third party intellectual property claim against you, Apigate or any third party that is relevant to the ApigateHub Exchange, Services or any rights or obligations under this Agreement; or 

(d)  where suspension or termination is required in order for Apigate to comply with any injunction or other court order issued against it or any relevant third party relating to the provision and use of the ApigateHub Exchange; or

(e) if Apigate’s third party provider, for any reason, suspends provision of the third party services or otherwise ceases to provide (temporarily or otherwise) the third-party services.

(f) where for 2 (two) or more months in any rolling 6 (six) month period, 2% or more of the total transactions requested via the ApigateHub Exchange for that particular Service in a calendar month are not processed, or are processed incorrectly, by you or your Systems.

14.2 If Apigate exercises its right to suspend pursuant to Clause 13.1, then Apigate will use reasonable endeavors to resume the provision and use of the ApigateHub Exchange, or the consumption of the affected Services within a reasonable period of time, which is commercially practicable and feasible in all of the circumstances.

14.3  Only if Apigate is unable to resume provision and use of ApigateHub Exchange, or consumption of the affected Services (as applicable), then Apigate may terminate the affected Services or this Agreement upon written notice to you. Neither party shall have any claims against each other arising from a termination pursuant to this Clause.    

15  WHEN THE TERM STARTS

15.1 This General Terms shall be effective from the date of the Service Order Form until it is terminated.

15.2  Each Services shall start on the date as set out in the Service Order Form.

16 WHEN WILL THE CONTRACT ENDS

16.1  A party (“Terminating Party”) may terminate this Agreement or any one or more Services immediately by providing written notice to the other party to that effect if:

(a)  that other party becomes insolvent, or makes an assignment for the general benefit of creditors, or any proceedings are commenced by or against that other party under insolvency Laws; 

(b)  proceedings for the appointment of a custodian, receiver, receiver manager or any other official with similar powers for that other party are commenced; or

(c)   that other party ceases to carry on business.       

16.2 Apigate may terminate this Agreement or any one or more Services upon 30 (thirty) days’ notice in the event a Change in Control occurs. You must promptly notify Apigate if a Change in Control of you occurs.

16.3  A Party may terminate this Agreement or any one or more Services immediately by providing notice to the other party if that other party:

(a)   has not performed any material covenant; or

(b)  has breached any material term of this Agreement or any material term of the Service Order Forms,

and such failure to perform or breach is:

(i)  incapable of cure; or

(ii)  capable of cure, but the other party fails to cure the failure to perform or breach within 30 (thirty) days from receipt of notice by the non-defaulting party (or such additional cure period as the non-defaulting party may authorize).

16.4 If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 60 (sixty) continuous days, the other party may immediately terminate this Agreement or any one or more Services by providing notice to the other party.

16.5 A party may terminate this Agreement immediately by providing notice to the other party if all Service Order Forms have expired or if all Services have otherwise been terminated in accordance with this Agreement.

16.6 A party may terminate this Agreement or any one or more Services upon 30 (thirty) days’ notice to the other party without assigning any reason whatsoever. 

16.7 Following termination or expiry of any Service Order Form under which you agree to provide Services ("Terminated Services") for any reason, you shall, if so requested by us continue to provide the Terminated Services in accordance with the relevant Service Order Form until the termination or expiry of every contract between us and a Northbound Partner under which we agrees to provide the Terminated Services in force at the date of the notice of termination or date of expiry of the Service Order Form. In such instance, the provisions in this Agreement and the particular Service Order Form (other than provisions relating to duration of this Agreement) which would otherwise have expired or been terminated will continue to apply in relation to the provision of the Terminated Services by you.

16.8 Precedence in Termination:

(a)  Termination of this Agreement will automatically terminate all Services and Service Order Forms.

(b) Termination of any Services will automatically terminate any Service Order Forms covering those Services.

(c)  Subject to the foregoing, termination of any Services or Service Order Forms will not terminate this Agreement.

16.9 Return or destruction of Confidential Information:

(a)   Either Party must as soon as practicable on expiry or termination of this Agreement or any part of this Agreement:

(i)    return to the other party or (if upon request of one Party) destroy;

(ii)   certify in writing to the other Party the destruction of; and/or  

(iii)  permit an employee of either Party to witness the destruction of,

all Confidential Information, Materials and information containing or comprising Intellectual Property Rights owned by or licensed to either Party or Data and/or Personal Data used under or in connection with the expired or terminated Agreement other than one copy of any notes and other records of the Confidential Information that you are required by Law to retain.

16.10  For the avoidance of doubt, the obligations on confidentiality as provided in this Agreement shall continue to apply to any such Confidential Information retained by you.

16.11 Survival of clauses:

(a)   The following shall survive the termination or expiry of this Agreement or any part of this Agreement:

(i)    the relevant parts of this Agreement in Clauses 5 (Data Protection), 8 (Intellectual Property Rights), 9 (Keeping Things Confidential),10 (Publicity), 12 (If Something Goes Wrong), 15 (When the Contract Starts) , 16 ( When will the Contract Ends) , 17 (Transferring to another Parties), 18 (Entire Agreement), 19 (Choice of Law), 20 ( Settling Dispute), 21 (Notices), 28 (General) and 29 (Defined Terms); and

(ii)   as well as any other term which by its meaning or nature may be understood to survive termination or expiry of this Agreement or any part of this Agreement.

(b)  Except as expressly provided otherwise in this Agreement, termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

17 TRANSFERRING TO ANOTHER PARTY

17.1  Neither Party may assign or novate without prior written consent of the other party except that either Party from time to time may assign or novate this Agreement, in whole or in part, to any entity within each Party’s group of companies by giving notice to the other party.  

17.2  If a party subcontracts any of its obligations under this Agreement, then that party will remain fully responsible and liable for the performance of its obligations.

18  ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations and agreements, oral or written, save in the case of fraudulent misrepresentation.

19  CHOICE OF LAWS AND COURTS

The Laws of Singapore will apply to the Agreement and any disputes or claims in connection with it or our relationship, including non-contractual ones.

20 SETTLING DISPUTES

20.1  We will both do what we reasonably can to settle any dispute or claim that occurs under or in relation to this Agreement, and to avoid having to get the courts or regulatory authorities involved.

20.2  We will both use the following dispute resolution process:

a. whichever of us is affected will provide Notice of the complaint that clearly sets out the full facts and includes relevant supporting documents;

b. we will both use reasonable endeavours to settle the dispute within 7 days;

c. if the dispute is not settled after 7 days (or any other period agreed by both of us in writing), then the Chief Executive Officer of Apigate (or person with equivalent level of seniority) and your counterpart (or person with equivalent level of seniority) shall meet to resolve the Dispute; and

d. if the dispute is still not settled 7 days after it is escalated, or no meeting for the purpose of settling the Dispute has taken place within 21 (twenty-one) days after the service of a Dispute Notice, the Dispute shall then be referred to and shall be finally and exclusively resolved by arbitration under the rules of the Asian International Arbitration Centre (AIAC) in force as at the date of application for arbitration ("AIAC Arbitration Rules 2018"). The AIAC Rules are hereby incorporated by reference into this Agreement.

20.3 The arbitration award rendered shall be in writing and shall set out the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.

20.4 Arbitration shall be conducted before a sole arbitrator. The seat, or legal place of arbitration, shall be Kuala Lumpur. The language of the arbitration shall be English. All documents submitted in connection with the proceedings shall be in the English language, or, if in another language, accompanied by an English translation.

20.5 We both agree that the arbitration award shall be final and binding on both of us and may be enforced in any court of competent jurisdiction.

20.6 Without prejudice to the above provisions, both of us may seek injunctive relief, including restraining orders and preliminary injunctions, in any court of competent jurisdiction, and either party may request that a court refers the proceedings to arbitration in accordance with this Agreement.

21 NOTICES

Any notice, invoice, request or other document or communication to be given under this Agreement shall be in writing and in the English language and may be given or sent by:

(a) hand delivery or courier, in which case it will be deemed to have been delivered immediately upon delivery;

(b) registered post, express or other fast postal service, in which case it will be deemed to have been delivered within 7 (seven) days of it being posted; or

(c) electronic mail, in which case it will be deemed to have been delivered at the time that it was sent as evidenced by a transmission report generated by the computer system,

to the other party at the address or email address set out in this Agreement, as may be updated from time to time by the other party.

22  NO EXCLUSIVITY OR MINIMUM COMMITMENT

Apigate may admit any number of third parties to consume Services and your involvement in connection with this Agreement is non-exclusive unless otherwise expressly provided in this Agreement.

23  RECORDS AND REPORTING

 23.1 You must keep clear, understandable, accurate, complete and up to date records and supporting information for all transactions relating to the Services consumed. You must:

(a)     make such transaction records and information available, as reasonably required by Apigate for inspection, verification and audit purposes promptly upon request; and

(b)    provide such other reports as set out in this Agreement, and as otherwise reasonably required by Apigate from time to time relating to the transactions, promptly upon request. 

24 PAYMENT

24.1 Payment terms shall be set out in the relevant Service Order Form.   

24.2 Each party shall bear its own costs and expenses as set out in this Agreement.

24.3 Unless specifically agreed otherwise, you shall not request or require, nor prevent or delay, the performance of this Agreement by requesting or requiring, any payment or other amount from any of the Northbound Partner of the Services. 

24.4 Each party agrees that it must not require the other party or any relevant third party to sell products or services at a particular price.

24.5 Each party may invoice the other party for any applicable amount under this Agreement. Failure by a party to raise an invoice will not prejudice or waive its right to later invoice the relevant amount.

24.6 Each party may be required to provide relevant information evidencing any amounts claimed in accordance with this Agreement.

24.7  Each amount invoiced must be paid within 30 (thirty) days following the date of receipt of the invoice if it is not disputed unless otherwise expressly provided in this Agreement or in the Service Order Form. Each party agrees that in the event the invoice is less than or equivalent to USD250.00 or RM1,000 (“Minimum Sum”) depending on the agreed currency in the Service Order Form, the settlement of such sum shall be paid when the cumulative amount of the invoice is more than the Minimum Sum or at the end of the relevant quarter of the year, whichever is earlier. Each Party shall bear its own bank transfer or finance charges as applicable.

24.8 In the event of any dispute to any amounts payable in accordance with this Agreement, such disputes shall not be a reason to withhold or deny any undisputed payments. Such disputes shall be resolved in accordance with the dispute resolution procedures as provided for in this Agreement.

24.9 The rate card for Services is set out in the relevant Service Order Form.

24.10 All payments you or Apigate make under this Agreement shall be made in US Dollars unless otherwise agreed in a Service Order Form.

24.11 The rate of exchange to be applied to convert any payments to be made under this Agreement from a foreign currency into Malaysian Ringgit  and/or local currency rate to be applied for Apigate to convert the transaction currency into US Dollars, shall be the rate of exchange published by Bloomberg Generic Composite rate for the purchase of Malaysian Ringgit and/or local currency with such foreign currency as at the close of business day of the particular transaction month.

24.12 Apigate shall not be liable for any losses caused by exchange rate fluctuations or by any failure to remit or convert funds to Malaysian Ringgit at a particular time or at a more favorable rate of exchange than actually used.

24.13  You shall bear any operation costs incurred by Apigate during the on-boarding process subject to prior notice to you on such cost.

25 TAXES

25.1 Unless agreed otherwise in a Service Order Form, Apigate will not be responsible for any bad debts, unrecovered sums or withholding for tax purposes and Apigate will deduct any such bad debts, unrecovered sums or withholding for tax purposes from the monthly invoice issued to you.

25.2 Unless agreed otherwise in a Service Order Form, all payments must be made by you in accordance with this Agreement regardless of any bad debts, unrecovered sums or withholding for tax purposes and must be accounted for in full and any payment grossed up to make whole all amounts specified in this Agreement. 

25.3 Withholding tax

(a)  If any payment under this Agreement is subject to any applicable taxes by the relevant authority under the Law in countries and jurisdiction which you are operating, and such tax is required to be withheld from the payment to Apigate, you are entitled to deduct any taxes payable from the gross payment and remit the amount to the tax authorities on behalf of Apigate.

(b) You shall then make payment of the fees to Apigate, less the sum deducted for tax in accordance with the terms and conditions of this Agreement.

(c) If Apigate is entitled to a preferential tax rate, Apigate may then furnish to you evidence of its tax residence status by way of letter or certificate issued by the relevant tax authority confirming Apigate’s tax residence status prior to you making its first payment to Apigate under this Agreement.

(d) You shall furnish to Apigate all applicable tax receipts within one (1) month from the date of payment.

25.4  Duties and other governmental or administrative charges and levies of any kind whatsoever arising from this Agreement, including sales, services, use, value‑added, goods and services or others (" Taxes") may be levied in addition to any payment for Services to be made in accordance with this Agreement and will be payable in accordance with this Agreement.

25.5  Where any service tax, goods and services tax, or tax of similar nature is applicable on any goods or services supplied under this Agreement imposed by the relevant Malaysian authorities, you shall pay for the appropriate service tax or goods and services tax, or tax of similar nature under each invoice, provided that Apigate has complied with the following:

(a)  Apigate is duly licensed by the relevant Malaysian authorities to collect such service tax or goods and services tax, or tax of similar nature;

(b)      the appropriate service tax or goods and services tax, or tax of similar nature for each invoice is included under the relevant invoice at the time of the issuance of the invoice; and

(c)       all invoices provided by Apigate to you comply with the relevant Laws in respect of service tax or goods and services tax, or tax of similar nature enforced by the Malaysian authorities.

25.6 If Apigate is required to pay any Taxes to any relevant third party in connection with this Agreement, Apigate may pass through such Taxes which may be levied in addition to any payment for Services and other Taxes to be made in accordance with this Agreement and will be payable in accordance with this Agreement.

25.7 All other taxes shall be the responsibility of the relevant party in compliance with the prevailing tax treaty or tax regulations in any relevant country.

26 GOVERNANCE

26.1 Each party’s respective Commercial Representative will be as set out in the Service Order Form and Each Party may update the personal particulars accordingly.

26.2 Each party’s respective Service Representative for a particular Service will be as set out in the Service Order Form and Each Party may update the personal particulars accordingly.

26.3  The parties’ respective Commercial Representatives and Service Representatives (or their delegates) will meet on a quarterly basis to discuss the Services.  Via video conference or any such means as agreed by both parties.

27 UNFORESEEABLE EVENTS

27.1 A party shall not be responsible for any delay, interruption or failure that is caused, whether directly or indirectly, by:

(a) the other party, any government agency or a court of competent jurisdiction issuing any order, directive or instruction which affects the first party’s performance of such obligations;

(b) the other party failing, neglecting or omitting in performing its obligations under this Agreement, including performing its responsibilities in accordance with this Agreement in an efficient and timely manner; or

(c) the occurrence of a Force Majeure Event,

which has a material impact on the performance of the relevant obligations of the first party.

27.2  If such an event occurs, the first party must:

(a) notify the other party of the delay, interruption or failure;

(b)  identify the specific nature of the delay, interruption or failure; and

(c) comply with the reasonable instructions of the other party in relation to the delay, interruption or failure (including any requirement to develop and implement an action plan in relation to that delay, interruption or failure).

28 GENERAL

28.1 Severability: If any illegal, invalid or unenforceable part of the Contract would be legal, valid or enforceable if part of it were removed, we both will negotiate in good faith to change the Contract, so it reflects what we both originally intended as much as possible.  

28.2 Survival of Agreement: This General Terms is to be binding upon the parties and their respective successors.

28.3 Waiver: No delay or failure to exercise or enforce any right or provision of this Agreement is considered a waiver of that right, unless made in writing.

28.4 Relationship of the parties: The relationship of the Parties shall be as per the terms set out in this Agreement.

28.5 Set-off: Neither party shall be entitled to set off any amount payable under this Agreement, unless this Agreement expressly provides otherwise.

28.6 Costs: each party shall bear its own costs and expenses in connection with this Agreement.

28.7  Making changes to the Agreement: Any changes shall be in writing and executed by both parties.

28.8 Cooperation with third parties: You shall cooperate with, and provide any information requested by, any third parties engaged by Apigate in connection with this Agreement.

29 DEFINED TERMS

The defined terms are as defined in the Defined Terms.pdf

A. DEFINED TERMS

1. "Authorisation" means any approval, consent, exemption, filing, licence, notarisation, permit, permission, registration, clearance, authorisation or waiver however described as required by Law, and any renewal or variation of any of them.

2.  “Apigate Group of Companies” means Apigate Sdn Bhd and its subsidiaries, associates and affiliates (including future subsidiaries, associates and affiliates).

3. "Business Day" means:

                            i. if a place is specified, any day, excluding weekends and public holidays in the specified place; or

                          ii. if a place is not specified, any day, excluding weekends and public holidays in Kuala Lumpur, Malaysia and/or such place where the applicable Apigate entity is located.

4. "Calculation Period" means the one (1) month period immediately prior to the date on which the earliest event occurred giving rise to the earliest claim, demand or proceeding made or brought by you under or in connection with this Agreement.

5. "Change in Control" means a change in the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of securities, by contract, or otherwise.

6. "Confidential Information " means confidential information of a party which relates to the subject matter of this Agreement and includes confidential information relating to the customers, personnel, policies or business strategies of that party and any company within that party’s group of companies, and the terms or conditions upon which the Services are consumed pursuant to this Agreement that is marked as confidential or would normally under the circumstances be considered confidential information of the disclosing party. Confidential Information does not include information that the receiving party already knew, that becomes public through no fault of the receiving party, that was independently developed by the receiving party, that was rightfully given to the receiving party by another party, that was required to be disclosed by Law, court order, governmental authority or the listing rules of any stock exchange of which the receiving party or its related companies are bound.

7. "Contract Price" means the sum of all amounts payable by you to Apigate in accordance with this Agreement in the Calculation Period, less any amounts payable by Apigate to you or any third party in connection with the Services, in the Calculation Period. The amount shall also be adjusted for any applicable taxes or charges levied by Apigate in accordance with this Agreement in the Calculation Period.

8. "Claim" means any claim, demand or proceeding arising out of any cause of action (including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action).

9. "Data" means data or information relating to:

                           i. Apigate or any relevant third party;

                          ii. operations, facilities, customers, personnel, assets and programs (including personal information or Personal Data) of Apigate or any relevant third party; or

                         iii. data or information, in any format whatever, generated, stored, processed, retrieved, printed or produced by you or on your behalf utilising such data or information referred to in (a) and/or (b) above.

10.  "Data Security Obligations" means Apigate obligations in relation to data security as set out in the Personal Data Protection Policy

11.  "Force Majeure Event" means a circumstance beyond the reasonable control of either or both parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, embargoes, epidemics, material and adverse changes in the financial and economic situation in the place where such party (which is unable to observe or perform on time the said obligation) is located, as per its address specified in this Agreement, or strikes or other labour disputes.

12.  “Incorporated Documents” means the Service Catalogue, Apigate’s Policies and Rules and any other related documents referred to in the ApigateHub General Term.

13.  "Infringement Claim" means a Claim by any person that:

                           i. Any of the Systems, Materials or Northbound Partner, and all Intellectual Property Rights made available by you in connection with this Agreement;

                          ii. Apigate's receipt of the Systems, Materials or Northbound Partner and all Intellectual Property Rights made available by you in connection with this Agreement; or

                         iii. Apigate's or any of its personnel's or sub-licensees' possession of, or use of, or dealings with, in accordance with any rights granted under this Agreement, Systems, Materials or Northbound Partner, and all Intellectual Property Rights made available by you in connection with this Agreement, infringes the Intellectual Property Rights of any third party.

14.  "Intellectual Property Rights" shall have the meaning as defined in the Intellectual Property Rights Policy.

15.  "Law" means all or any of the following as the context requires:

                           i. any law, code, decree, statute, regulation, by-law, ordinance or subordinate legislation; or

                         ii. any Authorisation, guidelines, policies, rules, code of practice, code of conduct or other requirement which is enforceable against a party (as applicable) or which is issued under an instrument referred to in (a) above.

16.  "Loss" means all damages, losses, liabilities, costs or expenses arising out of or in connection with:

                             i. a right under this Agreement;

                            ii. a cause of action in connection with this Agreement and/or the Services; or

                          iii. any claims, actions or proceedings brought by any third party, in each case, including breach of contract, tort (including negligence) and any other available cause of action at Law.

17.  "Materials" means literary works or other works of authorship including design, technical, functional, operational or other specifications (including application programming interface and other interface specifications), standards, rules, regulations, policies, procedures, work flows, software, routines, codes, interfaces, job control and other logs, databases, compilations of data, program listings, software tools, methodologies, processes, scripts, user manuals, reference manuals, reports, plans, drawings and other written documentation and machine-readable text and files.

18.  "Personal Data" shall have the meaning as defined in the Personal Data Policy.

19.  “Policies and Rules” refers to Apigate’s policies, specifications, processes, handbooks, instructions and requirements, including those that pertain to technical, functional or operational interface, inter-operability or integration; and relate to the integrity, security, interference, interruption, disturbance or disruption of the Services or ApigateHub Exchange; as amended, supplemented and replaced from time to time by Apigate.

20.  “Privacy Legislation” means:

                           i.  the Malaysian Personal Data Protection Act 2010 and the Data Protection Act applicable to you; and

                         ii. any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under any of the legislation referred to above.

21. “Security Measures” means the appropriate technical and organizational security measures to be taken by Apigate, taking into account the nature of processing of the Personal Data to protect the Personal Data against any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction, as set out in the Privacy Legislation.

22. “Services” means the services as set out in a relevant Service Catalogue and/or Service Order Form.

23. “Service Order Form” means the form which allows you to order Services from a particular Southbound/Northbound Partner via the ApigateHub Exchange.

24. “Service Catalogue” means the document which sets out the details of, and legal terms specific to, each individual Service ordered by you.

25.  “Southbound Partner” means any entity (which includes but not limited to mobile network operator) which has entered into a contract with Apigate to provide certain Services.

26. "Systems" means telecommunications and computer hardware and software and other applications, tools, programming, interfaces, coding, configurations, hardware, peripheral equipment, networks, communications and other systems, numbering, domain names or electronic addresses, facilities, architectures and other equipment or elements of whatever nature.

27.  "Territory" means Malaysia and any other jurisdiction specified as such in the Service Order Form.

1. INTRODUCTION

1.1.Apigate Sdn Bhd (“Apigate") is committed to protect personal data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction.

1.2.We recognise the importance of personal data to our business and the importance of privacy rights to individuals about whom we process personal data. This Policy is intended to assist you to comply with the requirements of the Personal Data Protection Act 2010 (“ PDPA”). This Policy may not be limited to protecting personal data but may also extend to all information which we hold.

1.3.The PDPA includes a number of defined terms which are used in this Policy. These terms are:

                            i.  ‘personal data’ means information in respect of commercial transactions that relates directly or indirectly to the end customer, who is identified or identifiable from that information or information from which an individual is identifiable or could reasonably be identified (either by itself or in combination with other data) or any network or transaction information and other technical information related or connected to an individual that according to best digital services industry practice should be treated the same as ‘personal data’ or from other information in the possession of Apigate, including any sensitive personal data and expression of opinion;

                          ii.  ‘processing’ means virtually anything we do with personal data such as collecting, recording, holding or storing the personal data or carrying out any operation or set of operations on the personal data, e.g. organisation, adaptation, alteration, use, disclosure, erasure or destruction;

2. YOUR RESPONSIBILITY

2.1  Personal Data provided by you: In relation to Personal Data provided by you to Apigate in connection with the Services, you warrant and represent to Apigate that you have obtained or have procured sufficient informed consent from each relevant individual in order for:

(a)  Apigate;

(b) any Southbound/Northbound Partner of the Services; and

(c) Apigate's contractors and subcontractors, to collect, use, handle, store, disclose, transfer (collectively known as “Process”) the Personal Data in accordance with the ApigateHub General Terms.

2.2  Personal Data Processed by Apigate: In respect of the Personal Data provided by you to Apigate, Apigate will:

(a)     Process the Personal Data and use any other information supplied by you solely to provide the Services as specified in the Service Order Form or any related documents;

(b)     comply with, and ensure that the officers, employees, agents, contractors and subcontractors of Apigate comply with the data security obligations and the security measures, and immediately notify you of any breach upon becoming aware of such breach;

(c)     ensure that the accuracy of the Personal Data received continues to be maintained;

(d)     immediately forward to you communications from the relevant individuals, regulatory bodies, law enforcement authorities and other third parties concerning requests for access to, or disclosure of, the Personal Data and not respond to or act on such communications without your prior consent, unless otherwise required by Law; and

(e)     on request or on the expiry of this Agreement, delete or return all existing copies of the Personal Data to you, unless otherwise required by Law.

2.3  Apigate appointing a contractor or subcontractor: Where Apigate appoints a contractor or subcontractor to assist in providing the Services and such assistance includes the Processing of Personal Data on your behalf, then, subject always to compliance with this data protection term by Apigate and the contractor or subcontractor, you hereby grant to Apigate a delegated authority to appoint such contractor or subcontractor to process Personal Data.

2.4  Personal Data provided to you: To the extent that Personal Data is provided to you by Apigate or the relevant parties in connection with the Services, you must:

(a) only process such Personal Data to the extent necessary to receive the Services or otherwise to comply with the Law;

(b) comply with the privacy legislation, and not do any act or engage in any practice that would breach any Privacy Legislation, or do any act or engage in any practice which would cause Apigate or the Relevant Parties to breach any Privacy Legislation; and

(c)ensure that sufficient technical and organisational security measures are adopted in relation to the Personal Data, including such measures to protect Personal Data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction.

Information required for invoicing or audit purposes relating to this Agreement may be retained in accordance with any requirements of applicable Law.

1. INTRODUCTION

1.1.  Apigate Sdn Bhd (“Apigate") is committed to protect the Intellectual Property Rights from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction.

1.2.  We recognise the importance of the Intellectual Property Rights to our business and this Policy is intended to assist you to comply with the requirements of the Intellectual Property.

1.3.  This policy includes the defined terms as follow s: 

Intellectual Property Rights means all present and future intellectual property rights, including:

(a)   patents, copyright, circuit layout rights, registered designs, trademarks, business names, product names, and any right to have Confidential Information kept confidential; and

(b)  any application or right to apply for registration of any of the rights referred to in (a) above.

2. YOUR RESPONSIBILITY   

2.1.  IPR ownership: You acknowledge that you will not acquire any Intellectual Property Rights residing or subsisting in, or other rights or ownership in relation to, any Data under or in connection with the Service except as expressly provided otherwise.

2.2.  No other IPR ownership: Except as otherwise set out in the ApigateHub General Terms or the Service Order Form, neither party shall receive any right, title or interest in respect of any Intellectual Property Rights owned or made available by or on behalf of the other party in connection with the Service.

2.3.  Grant of rights, consents and licences by you : You shall grant and/or procure from any relevant third parties (for example, your licensors), all necessary rights, consents and licences as may be required by Apigate to the extent necessary:

(a)  to enable Apigate to provide you with the Services for your consumption and use thereof as contemplated by the ApigateHub General Terms or the Service Order Form; and  

(b)  otherwise for Apigate to exercise its rights and perform its obligations under the ApigateHub General Terms or the Service Order Form which shall include but not limited to the following:

(i) a non-exclusive, world-wide, royalty-free, non-transferable licence (which is only revocable on termination or expiry of the Services in accordance with the provisions contained in the ApigateHub General Terms) to use the Systems, Data and Materials made available by you; 

     (ii)to interface with your Systems; and

     (iii) to use, copy, modify, perform, display, execute, install and distribute any Intellectual Property Rights owned or made available by or on behalf of you in connection with this Agreement or any of the Services (including, marketing the Services and/or identifying you as the receiver of the Services), subject to your branding guidelines.

3. Rights, consents and licences extended to other parties : You acknowledge that such rights, consents and licences contemplated under this policyshall also be extended to other relevant third parties (for example, Apigate’s contractors, subcontractors, infrastructure or software providers and other parties involved in the provision of the ApigateHub Exchange and Services).

4. Third party’s licence: Where it is necessary for you to procure a licence from a third party, the terms and conditions of that licence will apply to the extent that those terms and conditions are set out in the ApigateHub General Terms or the Service Order Form or in a separate licence agreement between Apigate and the relevant third party.

5. Grant of rights, consents and licences by Apigate: Apigate hereby grants to you :

a.  A non-exclusive, royalty-free, non-transferable licence (which is revocable if Apigate has suspended or terminated the ApigateHub Exchange or the Services (in whole or part) pursuant to the ApigateHub General Terms) in the Territory to interface with the ApigateHub Exchange; and

b.  The right to use Apigate’s and its licensors’ Intellectual Property Rights to the extent provided by Apigate and relating to the ApigateHub Exchange for the exercise of your rights and the performance of your obligations under this Agreement, including marketing the Services and/or identifying Apigate as the provider of the Services or the ApigateHub Exchange, subject to Apigate’s branding guidelines.

6. Open source software: The ApigateHub Exchange contains certain components which are third party open source components ("OS Software"). The OS Software distributed under the Licence is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. Apigate excludes all liability to you for any and all losses (including direct, indirect and consequential damages) caused by or in connection with your use of the OS Software. Please refer to the Licence for the specific language governing permissions and limitations under the Licence. 

7. No registration of IPR: Each party must ensure that the other party (including any third parties acting on its behalf):

(a) do not, register or take steps to register, any Intellectual Property Rights owned by the other party; and

(b)    except as expressly set out in this provision titled “Intellectual Property Rights”, do not, without the prior written consent of the other party, use any Intellectual Property Rights owned by that party.

9. Goodwill: All goodwill resulting from any use of a party's name, brand, logo, trade mark, trade name, business name, product name or other mark shall accrue only to that party.

10.IPR ownership notices: Each party shall ensure that each copy of any Materials provided to it by or on behalf of the other party under or in connection with this Agreement at all times bears any copyright, trade mark, confidentiality and other notices that appear on those Materials as provided to that party by or on behalf of the other party.

APIGATE PRO GENERAL TERMS

This General Terms applies to all Customers procuring any Service offered by Apigate Sdn Bhd (Company No. 1259684-W) . By signing the Statement of Work, you are deemed to have read and accepted the term and conditions stated herein. Apigate Sdn Bhd may amend and update the terms from time to time and Apigate Sdn Bhd may give you notice of such change via our website. You hereby agree that your continuous use and access of the Service shall signify your acceptance to the changes and any update to the terms and conditions mentioned therein.

1.  THE BASIC

   1.1 We has developed certain Support and Services as specified in the Statement of Work ( hereinafter referred to as “SOW”) for your business operation’s needs.

   1.2 These are the General Terms that apply to any Services you procure from Apigate Sdn. Bhd . This General Terms will be applicable for Apigate Sdn Bhd., its affiliates, its subsidiaries, its successors and permitted assigns (hereinafter referred to as “ Apigate”).

2. WHAT DO WE PROVIDE

2.1 License Grant

2.1.1  End User License Agreement for Updates. In the course of providing the Support and during the Term of this Agreement, Apigate may provide you with Updates subject to the following license terms ApigatePro End-User License Agreement.pdf. Each instance of the Supported Apigate Open Source Software listed in the SOW is recognized as a “SUPPORTED PRODUCT” for purposes of such license as of the Subscription Start Date.

2.1.2  You may deploy additional instances of Apigate products into production during the Term by executing a new SOW. Such additional instances become Supported Apigate Open Source Software and are subject to the same license terms and other conditions including the payment of the applicable Fees (pro-rated from the date of Subscription Start Date through the remainder of the Term).

  2.2  Support Services

    2.2.1  Subject to the terms and conditions of this Agreement, for a minimum period of one (1) year from the date of production deployment as specified in the SOW, Apigate shall use its commercially reasonable efforts to provide the production support services for the Supported ApigatePro Open Source Software, pursuant to the terms of the Support Plan designated in the SOW and as provided in ApigatePro’ s Standard Support Services Policy.

   2.2.2  QuickStart. Apigate will provide a QuickStart consulting package consisting of on-site or off-site consulting and follow-up Developer Consultancy as an additional service in the relevant SOW subject to the following terms:

a) Scope. Apigate will provide resources for a five (5) day on-site engagement, commencing at a date to be mutually agreed in writing but not later than four (4) months from the SOW date, for assisting you with design service-oriented architecture solutions and deployment architecture, developing prototype code for your scenarios, and preparing a project for production deployment.  QuickStarts typically commence no sooner than two (2) to three (3) weeks from the SOW date to allow for agenda development, resource selection, travel and logistics.

b)  Resources. Apigate on-site or off-site consulting staff will consist of two (2) experienced consultants, selected for their expertise to suit your objectives.

c) Developer Consultancy Services . Apigate will provide Developer Consultancy Services in accordance with the ApigatePro Support Services Policy which shall commence on the last day of the on-site engagement and continue for thirty (30) days, or a maximum of ten (10) hours, or the termination of this Agreement, whichever is earlier.

2.2.3  Developer Consultancy . Apigate will provide Developer Consultancy Services to you in accordance with the ApigatePro Support Services Policy as an additional service in the relevant SOW and subject to the following additional terms:  

a) Developer Consultancy Services shall be provided for the period specified in the SOW, or the completion of the maximum developer hours specified in the SOW, or the termination of this Agreement, whichever is earlier.

b) You may extend the Services for further terms upon the expiration of the Developer Consultancy Services Term, and subject to the following conditions,

1) You shall execute a SOW or the addendum to the SOW within fifteen (15) days from the date of completion of the Developer Consultancy Services Term or any extension thereto,

2) the extension shall be deemed to have commenced on the date of the completion of the then current development support term, and

3) In the event the Developer Consultancy Services Term and any extensions spans less than one (1) year;

                               i. Any unutilized developer hours may be carried over to the extended development support term.

                              ii. Fees for any extended term shall be payable on date of commencement of the extension.

                             iii. All other terms and conditions of this Agreement shall apply to such extended term.

2.2.4  Managed Cloud Hosting. Apigate will provide Managed Cloud Hosting Services to you in accordance with the ApigatePro Support Service Policy and the Service Level Agreement as an additional service in the relevant SOW as specified in the relevant SOW and shall be subject to the additional terms below.

a) Managed Cloud Hosting fees are non-refundable and billed at your option quarterly or annually in advance. The hosting period commences on the first day access to the operational hosted environment is delivered to you. Invoices will include hosting fees for the upcoming period, any fees for Amazon Web Services, Google Cloud Platform or any other Cloud hosting services provided through Apigate, and any other mutually agreed related costs.

b) You may contract directly with the Cloud hosting provider to obtain necessary Services and liaise directly and only in respect of all matters (including, without limitation, in respect of payments, renewals and service disruption) concerning Cloud hosting services. Alternatively, you may direct Apigate to obtain the necessary Cloud hosting services and Apigate will pass such charges through to you.  For the avoidance of doubt, it is mutually agreed that Apigate shall not under any circumstances bear any costs, claims or liabilities of any nature in the event of any fault, failure or disruption of the Cloud Hosting Services engaged by you pursuant to this Agreement.

c) The Managed Cloud Hosting option may be discontinued with fourteen (14) days written notice and a final invoice will be issued for all remaining fees.

2.2.5   The relationship of the parties will be that of independent contractors. Neither party, nor any partner, agent or employee of either party, has authority to enter into contracts that bind the other or create obligations on the part of the other without the prior written authorization of such party.

3. APIGATE’S PERSONNEL AND ACCEPTANCE

3.1 Apigate shall make available Apigate’s Personnel to perform the duties of Apigate as stipulated in this Agreement or the applicable SOW, or provide replacements of equivalent status, in each case with reasonable prior written notice you.

3.2  Personnel Changes 

a. Personnel Schedule Changes.  You may, in writing, request changes to the schedules of Apigate’s Personnel, provided that you shall give Apigate a minimum of ten (10) business days to effect the change.

b. Open-ended Assignments. You may, in writing, request the end of an assignment of Apigate Personnel to open-ended projects, provided that Apigate will charge you for up to fifteen (15) days of Services that were to be performed by the affected Apigate Personnel in the event if you do not provide prior request at least thirty (30) days prior to the end of the assignment.

c. Extensions of Assignments. Apigate will consider its personnel for new deployments thirty (30) days prior to the expiration of an assignment.  If you desire to extend the assignment of any Apigate Personnel to your relevant project, you shall notify Apigate at least thirty (30) days before the scheduled expiration to assure continued availability. Apigate will use commercially reasonable efforts to accommodate extension requests received less than thirty (30) days in advance.

3.3 The parties agree that Acceptance Testing criteria for any Services and/or Work Product should, be set forth in each SOW.  upon completion of any Services or delivery of any Work Product by Apigate, you will examine the Services and/or Work Product in conformance with the Acceptance Testing criteria and shall inform Apigate of such conformance in writing.  If Apigate has not received written notice from you within ten (10) business days following completion of the Services or delivery of the Work Product, the applicable Services or Work Product will be deemed accepted by you.  Furthermore, if Acceptance Testing criteria are not specified in the SOW, the applicable Services or Work Product will be deemed accepted by you on the date of delivery.

4.  WHEN THE TERM STARTS

4.1 This General Terms shall be effective from the date of the SOW until it is terminated.

4.2  Each Service shall start on the date as set out in the relevant SOW.

5.  WHAT WE UNDERTAKE

5.1 Apigate will comply with the applicable delivery timelines for the completion of the Services and the provision of Work Products.

5.2 Apigate reserves the right to:

5.2.1 modify the Platform, its network, system configurations or routing configuration; or

5.2.2 modify or replace any Hardware or Software,

5.2.3 change the terms of the SLAs during the Term of this Agreement and provide you notice on the changes via email.

as it deems fit provided that this has no adverse effect on Apigate's obligations and its provision of the Support. If such changes will have an adverse effect, Apigate shall provide prior written notice to you and (a) the parties shall follow the Change Control Procedure, or (b) terminate the relevant SOW accordingly.

5.3 Apigate will provide or implement updates, upgrades, maintenance and security patches, as necessary and as further described in the applicable SOW.

6. WHAT DO WE DO WITH YOUR DATA

6.1 You shall at all times comply with the  Personal Data Protection Policy .pdf in regard to the Personal Data.

7. INTELLECTUAL PROPERTY RIGHTS ("IPR”)

7.1 You shall at all times comply with the  Intellectual Property Rights Policy.pdf  in regard to the IPR

8. YOUR OBLIGATIONS

8.1 You shall provide Apigate with:

(a) Reasonably necessary co-operation in relation to the SOW;

(b) access to such information as may be required by Apigate, in order to render the Services, including your data, security access information and software interfaces, to your other business applications, as mutually agreed;

(c) personnel assistance, including your Personnel as may be reasonably requested by Apigate from time to time; and

(d)  comply with all Applicable Laws and regulations with respect to its activities under this Agreement; and

(e)  carry out all other responsibilities set out in the applicable SOWs in a timely and efficient manner. In the event of any delays in your agreeable assistance, the Parties may adjust any timetable or delivery schedule set out in the SOW as reasonably necessary.

9. WHAT DO WE WARRANT

9.1 Unless expressly provided herein to the contrary, and to the maximum extent permitted by applicable law, and any and all Support and software including Patches and Service packs provided by Apigate hereunder are provided “as is” without any warranties or conditions of any kind, including implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. No warranty, written or oral, is expressed or implied by Apigate or may be inferred from a course of dealing or usage of trade. Nothing stated in this Agreement or the SOW will imply that the operation of any software will be uninterrupted or error free, or that errors will be corrected. 

9.2  Apigate’s sole obligation and your sole remedy for Apigate’s breach of any representations, warranties or obligations hereunder shall be to (i) in the case of a defective or faulty bug fix, patch or the like, Apigate shall deliver to you a corrected version which allows for proper installation; or (ii) if option (iii) is not relevant or is deemed not to be commercially feasible by Apigate, terminate the relevant SOW and refund a pro rata portion of the Fees paid by you. Apigate makes no warranties of any kind with respect to Supported Apigate Open Source Software, including implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement.

9.3 For a period of ninety (90) days from the date of your acceptance (the “Warranty Period”), Apigate warrants that it will (a) perform all Services in a professional and workmanlike manner and (b) provide Work Products that conform in all material respects to the specifications set forth in the SOW.  You must report any deficiencies to Apigate in writing within the Warranty Period to receive warranty remedies.  Your exclusive remedy and Apigate’s entire liability is to provide Services to correct the deficiencies.  If Apigate is unable to correct the deficiencies, you are entitled to recover the fees paid to Apigate for the deficient portion of the Services or Work Product. APIGATE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE .  Apigate makes no warranties regarding any portion of any deliverable developed by you or by any third party, including any third-party software, hardware, or other third-party products provided by Apigate.

10. IF SOMETHING GOES WRONG

10.1 Except for damages for bodily injury (including death), Apigate’s total aggregate liability under this Agreement is limited to three (3) months value of the Services.

10.2 In no event will Apigate be liable for any incidental indirect, special, or consequential costs or damages including, without limitation, downtime costs; lost business, revenues, or profits; failure to realize expected savings; loss of or damage to data; or software restoration, regardless of whether any of the foregoing are foreseeable, and regardless of whether  Apigate has been notified of the possibility of any of the foregoing. These limitations will apply regardless of the basis of liability; including negligence; misrepresentation; breach; libel; infringement of publicity, privacy, or intellectual property rights; or any other contract or tort claim.

10.3 You shall indemnify and hold harmless Apigate in respect of Losses suffered or incurred by Apigate relating in any way to:

(a)  your consumption of the Services or any act or omission by you relating thereto, including in connection with third party claims; 

(b)  a failure by you to comply with the privacy and data protection obligations or confidentiality obligations or applicable Laws or Authorisations;

(c)   any act or omission by you putting Apigate in breach of applicable Laws or Authorisations; and/or

(d)  an Infringement Claim.

10.4 Each party shall indemnify and hold harmless the other party in respect of Losses suffered or incurred by either party, arising from any claim that the intellectual property owned by either party infringes any Intellectual Property Rights of a third party.

10.5 Apigate will indemnify and hold you harmless from any loss or damage arising out of a claim or action against such parties for injuries or damage to person or property caused by the negligent acts or omissions of Apigate’s personnel.

10.6 A party's responsibility to indemnify and hold harmless the other party is conditioned upon:

a. The indemnifying party receiving prompt written notice of any claim or action.

b. The indemnifying party having sole discretion, but not the duty, to assume the defense of the indemnified party against any claim or action upon which third party indemnity is sought.

c. The indemnifying party has no liability to indemnify or hold the indemnified party harmless for any payment by the indemnified party in settlement or compromise of a claim or action unless the indemnifying party receives written notice at least ten (10) business days in advance of such settlement or compromise and approves the settlement in writing before payment is made.

11.  WHAT DO YOU NEED TO PAY?

11.1 You will pay the Fees set out in the SOW for the Services that you procure accordingly.

11.2 You shall reimburse Apigate for all actual reasonable long-distance telephone charges and travel costs and expenses including airfares, hotels and meals incurred by Apigate, as agreed upon in advance. Apigate will invoice all such expenses and special charges on a monthly basis

11.3 Apigate will invoice charges for Services or Work Product provided on a time and materials basis on a monthly basis. Apigate will invoice charges for Services or Work Product provided on a fixed price basis in accordance with the agreed payment schedule set forth in the applicable SOW.

11.4 All invoices except for invoices reasonably disputed by Customer, will be due and payable within thirty (30) days from the date of invoice. Each Party shall bear its own bank transfer or finance charges as applicable.

11.5 You shall raise any concern or dispute in writing within twenty (20) days from the date of the invoice or the invoice will be presumed payable. Your dispute of any amounts will not delay its payment of undisputed charges and expenses to Apigate. If you default in payment of any sum due, Apigate may suspend further performance under any or all relevant SOWs.

11.6 All payments make under this Agreement shall be made in US Dollars unless otherwise agreed in the SOW.

11.7 The rate of exchange to be applied to convert any payments to be made under this Agreement from a foreign currency into Malaysian Ringgit and/or local currency and/or the rate to be applied for Apigate to convert the transaction currency into US Dollars, shall be the rate of exchange published by Bloomberg Generic Composite rate for the purchase of Malaysian Ringgit with such foreign currency as at the close of business day of the particular transaction month.

11.8 Apigate shall not be liable for any losses caused by exchange rate fluctuations or by any failure to remit or convert funds to Malaysian Ringgit at a particular time or at a more favorable rate of exchange than actually used.

11.9 All prices and rates excluding costs incurred for additional requirements or expectations not anticipated by the parties at the execution of this Agreement or a SOW will be invoiced by Apigate on a monthly basis.

11.11 Interest will accrue on amounts past due at the lower of eight percent (8%) per annum or the maximum permitted by applicable law. In any proceeding brought by Apigate to collect amounts due, Apigate will also receive its actual costs of collection, including reasonable legal costs.

11.12 Withholding tax

a) If any payment under this Agreement is subject to any applicable taxes by the relevant authority under the Law in countries and jurisdiction which you are operating, and such tax is required to be withheld from the payment to Apigate, you are entitled to deduct any taxes payable from the gross payment and remit the amount to the tax authorities on behalf of Apigate.

b) You shall then make payment of the fees to Apigate, less the sum deducted for tax in accordance with the terms and conditions of this Agreement.

c) If Apigate is entitled to a preferential tax rate, Apigate may then furnish to you the evidence of its tax residence status by way of letter or certificate issued by the relevant tax authority confirming Apigate’s tax residence status prior to you making your first payment to Apigate.

d) You shall furnish to Apigate all applicable tax receipts within one (1) month from the date of payment.

11.13 You hereby agree to hold  Apigate harmless against any claims or penalties that may be imposed on Apigate by reason of your failure to comply with your obligations under the tax Laws of your jurisdiction.

11.14 You hereby agree that duties and other governmental or administrative charges and levies of any kind whatsoever including sales, services, use, value‑added, goods and services or others ("Taxes") may be levied in addition to any payment for Services

11.15 Where any service tax, goods and services tax, or tax of similar nature is applicable on any goods or services supplied under this Agreement imposed by the relevant Malaysian authorities, you shall pay for the appropriate service tax or goods and services tax, or tax of similar nature under each invoice, provided that Apigate has complied with the following:

(a)  Apigate is duly licensed by the relevant Malaysian authorities to collect such service tax or goods and services tax, or tax of similar nature;

(b)  the appropriate service tax or goods and services tax, or tax of similar nature for each invoice is included under the relevant invoice at the time of the issuance of the invoice; and

(c)  all invoices provided by Apigate to you comply with the relevant Laws in respect of service tax or goods and services tax, or tax of similar nature enforced by the Malaysian authorities.

11.16 If Apigate is required to pay any Taxes to any relevant third party in connection with this Agreement, Apigate may pass through such Taxes which may be levied in addition to any payment for Services and other Taxes to be made in accordance with this Agreement and will be payable in accordance with this Agreement.

10.17 Other taxes: All other taxes shall be the responsibility of the relevant party in compliance with the prevailing tax treaty or tax regulations in any relevant country.

12.  CHANGE CONTROL PROCEDURE

12.1 If either party wishes to change the scope of any of the Services (including your requests for additional services), the requested change shall be submitted to the other party in writing.

12.2  If either party requests a change to the scope or execution of the Services, Apigate shall, within a reasonable time, provide a written estimate to you for:

12.2.1 The likely time required to implement the change;

12.2.2 Any variations to the Fees arising from the change;

12.2.3 the likely effect of the change on the timetable and/or delivery; and

12.2.4 any other impact of the change on the terms of this Agreement.

12.3 You may reject or request modifications to Apigate’s proposals above and once you approve Apigate’s proposal, parties will carry out the change as mutually agreed.

12.4    If Apigate requests a change to the scope of the Services in order to be able to reasonably deliver the Services, you shall not unreasonably withhold or delay consent to it. 

13.  PROPRIETARY RIGHTS

13.1 You shall own and retain all rights, title and interest in and to the Customer Data. Apigate shall have no rights to access, use or modify the Customer Data except as provided herein.

13.2 Unless otherwise agreed in writing, the Work Products developed for you by Apigate pursuant to any SOW will belong to you. This provision does not apply to third party works or products Apigate provides to you or to Apigate Materials.

13.3  You acknowledges that Apigate is in the business of providing information technology consulting services and has accumulated expertise in this field and agrees that Apigate will retain all right, title and interest in and to all Apigate Materials. If Apigate Materials are included with or embodied in any Work Product, your will have a perpetual, irrevocable, nonexclusive, worldwide, royalty-free license to use, execute, reproduce, display, perform, distribute internally, sub-license further to its subscribers or customers and prepare for internal use “derivative works”, based upon Apigate Materials in each case solely in conjunction with the Work Product delivered hereunder. Any interest in the Services and Work Products granted hereunder by Apigate to you  shall be effective upon and to the extent of payment by your fees and expenses invoiced by Apigate.

14.  KEEPING THINGS CONFIDENTIAL

14.1 Confidentiality:

(a) We will both keep all Confidential Information confidential;

(b) We will both take adequate and appropriate steps to notify our employees and the third parties of their obligations to comply with this Agreement.

(c) We both agree that either party may disclose this Agreement to its related companies, solicitors, auditors, insurers and accountants to the extent necessary for that party to perform its obligations or exercise its rights under this Agreement.

(d) This confidentiality clause shall survive for 2 (two) years from the termination or expiry of this Agreement for any reason.  

15. PUBLICITY

15.1 Each party may only make a public announcement or communication in connection with this Agreement with the prior written consent of the other party and the relevant third party’s contractors, except that the other party may make a public announcement or communication if required by Law, court order, governmental authority or the listing rules of any stock exchange of which the receiving party or its related companies are bound. 

16. WHEN THE SERVICE WILL END

16.1 Either party may terminate this Agreement for cause with immediate effect by giving written notice to the other party if:

16.1.1 The other party fails to pay any undisputed amount due under this Agreement on the due date for payment and remains in default not less than ninety (90) days after being notified in writing to make such payment;

16.1.2  The other party commits a material breach of this Agreement and fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;

16.1.3 The other party suffers an Insolvency Event;

16.1.4  The other party suspends or ceases, carrying on all or a substantial part of its business; or

16.1.5  There is a change of Control of the other party; or

16.2 Either Party may terminate this Agreement without cause upon thirty (30) days advance written notice. Furthermore, unless otherwise stated in the applicable SOW, either party may terminate a SOW upon thirty (30) days’ advance written notice.  Apigate will advise you of the extent to which performance has been completed and deliver any work in progress.

16.3 If a delay or failure by a party to perform its obligations due to a Force Majeure Event exceeds 60 (sixty) continuous days, the other party may immediately terminate this Agreement or any one or more Services by providing notice to the other party.

16.4 Apigate will be paid for all work performed and expenses incurred through the date of termination, including charges for materials ordered by Apigate that cannot be returned for a full refund. In the event if you terminate a SOW or this Agreement without cause while any SOW remains uncompleted, you shall pay any cancellation fee applicable to the affected SOW as set forth in such SOW.

16.5 Any provision of this Agreement or the relevant SOW which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.

16.6 Termination of this Agreement or the relevant SOW, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

16.7 On termination of this Agreement or the relevant SOW for any reason:

16.7.1 Apigate shall immediately cease provision of Support and/or Services;

16.7.2 Each party shall return and make no further use of any equipment, property, materials and other items, including Confidential Information, and all copies of them, belonging to the other party, except which are allowed to be retained as per the terms of this Agreement.

16.8 Termination of this Agreement will terminate all other Support services subscribed under the SOW. Any and all payments made by you for Support pursuant to this Agreement are non-refundable except in the instances provided for in Clause 7.1.

17. UNFORESEABLE EVENT

17.1 A party shall not be responsible for any delay, interruption or failure that is caused, whether directly or indirectly, by:

(a) the other party, any government agency or a court of competent jurisdiction issuing any order, directive or instruction which affects the first party’s performance of such obligations;

(b) the other party failing, neglecting or omitting in performing its obligations under this Agreement, including performing its responsibilities in accordance with this Agreement in an efficient and timely manner; or

(c) the occurrence of a Force Majeure Event,

which has a material impact on the performance of the relevant obligations of the first party.

17.2  If such an event occurs, the first party must:

(a) notify the other party of the delay, interruption or failure;

(b) identify the specific nature of the delay, interruption or failure; and

(c) comply with the reasonable instructions of the other party in relation to the delay, interruption or failure (including any requirement to develop and implement an action plan in relation to that delay, interruption or failure).

  18. NOTICES

18.1 Any notice, invoice, request or other document or communication to be given under this Agreement shall be in writing and in the English language and may be given or sent by:

(a) Hand delivery or courier, in which case it will be deemed to have been delivered immediately upon delivery;

(b)  Registered post, express or other fast postal service, in which case it will be deemed to have been delivered within 7 (seven) days of it being posted; or

(c)  Electronic mail, in which case it will be deemed to have been delivered at the time that it was sent as evidenced by a transmission report generated by the computer system, to the other party at the address or email address set out in this Agreement, as may be updated from time to time by the other party.

19. SETTLING DISPUTES

19.1 We will both do what we reasonably can to settle any dispute or claim that occurs under or in relation to this Agreement, and to avoid having to get the courts or regulatory authorities involved.

19.2 We will both use the following dispute resolution process:

a) Whichever of us is affected will provide Notice of the complaint that clearly sets out the full facts and includes relevant supporting documents;

b) We will both use reasonable endeavours to settle the dispute within 7 days;

c) If the dispute is not settled after 7 days (or any other period agreed by both of us in writing), then the Chief Executive Officer of Apigate (or person with equivalent level of seniority) and your counterpart (or person with equivalent level of seniority) shall meet to resolve the Dispute; and

d) if the dispute is still not settled 7 days after it is escalated, or no meeting for the purpose of settling the Dispute has taken place within 21 (twenty-one) days after the service of a Dispute Notice, the Dispute shall then be referred to and shall be finally and exclusively resolved by arbitration under the rules of the Asian International Arbitration Centre (AIAC) in force as at the date of application for arbitration ("AIAC Arbitration Rules 2018"). The AIAC Rules are hereby incorporated by reference into this Agreement.

19.3 The arbitration award rendered shall be in writing and shall set out the reasons for the arbitrator’s decision. The award shall apportion the costs of the arbitration as the arbitrator deems fair.

19.4 Arbitration shall be conducted before a sole arbitrator. The seat, or legal place of arbitration, shall be Kuala Lumpur. The language of the arbitration shall be English. All documents submitted in connection with the proceedings shall be in the English language, or, if in another language, accompanied by an English translation.

19.5 We both agree that the arbitration award shall be final and binding on both of us and may be enforced in any court of competent jurisdiction.

19.6 Without prejudice to the above provisions, both of us may seek injunctive relief, including restraining orders and preliminary injunctions, in any court of competent jurisdiction, and either party may request that a court refers the proceedings to arbitration in accordance with this Agreement.

20. CHOICE OF LAW AND COURT

20.1  The Laws of Singapore will apply to the Agreement and any disputes or claims in connection with it or our relationship, including non-contractual ones.

21.  AUDIT CLAUSE FOR SUPPORT

21.1 Upon Apigate’s request with reasonable notice, you will permit technical and operational audits related to the Support subscribed under this Agreement, including but not limited to usage of supported instances purchased by you in terms of this Agreement.

21.2  In the event that noncompliance is discovered in an audit, you will be responsible for all reasonable costs associated with carrying out such audit. 

21.3  If the audit reveals you have exceeded the usage of instances or system capacity (Transactions Per Second) provided for in this Agreement or other agreement with Apigate, you shall pay Apigate prorated Fees for such excess instances or capacity at the same rate(s) designated in the related SOW. If the date on which excess instances were placed in production or date on which the agreed system capacity limit was exceeded cannot be determined to the satisfaction of Apigate, usage of such excess instances or system capacity shall be deemed to have commenced as of the Subscription Start Date.

22. GENERAL

22.1 Reference: Apigate may reference its general business relationship with you for marketing purposes.

22.2  Compliance: Apigate will comply with the governing law as specified in this Agreement and you will comply with its applicable foreign, federal, state, and local laws, rules, regulations, orders, ordinances and government requirements.

22.3 Insurance: You acknowledge that Apigate has the necessary insurance needed for the performance of the Services under this Agreement.

22.4  Severability: If any illegal, invalid or unenforceable part of the Contract would be legal, valid or enforceable if part of it were removed, we both will negotiate in good faith to change the Contract, so it reflects what we both originally intended as much as possible.  

22.5 Survival of Agreement: This General Terms is to be binding upon the parties and their respective successors.

22.6 Waiver: No delay or failure to exercise or enforce any right or provision of this Agreement is considered a waiver of that right, unless made in writing.

22.7 Relationship of the parties: The relationship of the Parties shall be as per the terms set out in this Agreement.

22.8 Entire Agreement: This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations and agreements, oral or written, save in the case of fraudulent misrepresentation.

22.9 Set-off: Neither party shall be entitled to set off any amount payable under this Agreement, unless this Agreement expressly provides otherwise.

22.10 Costs: each party shall bear its own costs and expenses in connection with this Agreement.

22.11 Making changes to the Agreement: Any changes shall be in writing and executed by both parties.

22.12 Cooperation with third parties: You shall cooperate with, and provide any information requested by, any third parties engaged by Apigate in connection with this Agreement.

22.13 Non-Solicitation: Neither party will directly or indirectly during the Term of this Agreement or for a period of one (1) year:

 (a) solicit for hire or engagement any of the other party’s personnel who were involved in the provision or receipt of Services under this Agreement; or

 (b) hire or engage any person or entity who is or was employed or engaged by the other party and who was involved in the provision or receipt of Services under this Agreement until one hundred eighty (180) days following the termination of the person’s or entity’s employment or engagement with the other party.

If you hire or engages, directly or indirectly, any personnel of Apigate in violation of (b) above, you will pay Apigate a finder’s fee equal to three times the monthly billing rate (assuming 168 hours per month) for such personnel.

23. ENTIRE AGREEMENT

23.1 This Agreement constitutes the entire Agreement between the parties and supersedes all prior representations and agreements, oral or written, save in the case of fraudulent misrepresentation.

24. TRANSFERRING TO ANOTHER PARTY

24.1 Neither Party may assign or novate without prior written consent of the other party except that either Party from time to time assign or novate this Agreement, in whole or in part, to any entity within each Party’s group of companies by giving notice to the other party. 

24.2 If a party subcontracts any of its obligations under this Agreement, then that party will remain fully responsible and liable for the performance of its obligations.

25. DEFINED TERMS

The defined terms are as defined in the ApigatePro TnC Defined Terms.pdf

A. DEFINED TERMS

1. Acceptance Testing means testing of the Services or Work Products in accordance with the Agreement and the SOW;

2. Acceptance Date means, wherever applicable, the date on which the Acceptance Testing is completed and Apigate accepts the Services, or the date on which the Services are deemed to be accepted in accordance with the Agreement;

3. Agreement means this ApigatePro General Terms and all exhibits attached thereto, together with any fully executed SOWs entered into by the parties;

4. Applicable Laws means in relation to the obligations of the Parties under this Agreement, any statute, law, regulation, ordinance, rule, judgment, order, decree, clearance, approval, directive, guideline, code, standard, manual, policy, requirement, or other government restriction or any similar form of decision, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority, whether in effect as of the Effective Date or thereafter, and in each case as amended from time to time;

5. Apigate Materials means all discoveries, concepts and ideas, whether or not registrable under patent, copyright or similar statutes, including, without limitation, patents, copyright, trademarks, trade secrets, processes, methods, formula, techniques, tools, solutions, programs, data and documentation, and related modifications, improvements and know-how, that Apigate, alone, or jointly with others, its agents or employees, conceives, makes, develops, acquires or obtains knowledge of at any time before, after or during the term of this Agreement without breach of Apigate's duty of confidentiality to Customer and without using any ideas, concepts, discoveries, information or intellectual property that is conceived, made, developed or provided by Customer or its Representatives;

6. Apigate’s Personnel means Apigate’s employee assigned to the provision of the Services and, where appropriate, any replacements of such employees;

7. Business Day means a day other than a Saturday, Sunday or public holiday when banks are not open for business;

8. Business Week means five Business Days.

9. Change Control Procedure means the procedures as set out in the Agreement;

10.Confidential Information means confidential information of a party which relates to the subject matter of this Agreement and includes confidential information relating to the customers, personnel, policies or business strategies of that party and any company within that party’s group of companies, and the terms or conditions upon which the Services are consumed pursuant to this Agreement that is marked as confidential or would normally under the circumstances be considered confidential information of the disclosing party. Confidential Information does not include information that the receiving party already knew, that becomes public through no fault of the receiving party, that was independently developed by the receiving party, that was rightfully given to the receiving party by another party, that was required to be disclosed by Law, court order, governmental authority or the listing rules of any stock exchange of which the receiving party or its related companies are bound.

11. Control means the power to direct or cause the direction of management and policies of an entity, either directly or indirectly, whether through direct or indirect ownership, voting rights, contract or otherwise. ‘Controlling’, ‘Common Control’, ‘Controlled by’ and ‘under Common Control with’ will be construed accordingly;

12. Combined Product means each value-added software application program and/or computer hardware product specified in a Support Agreement that (i) incorporates the Supported Apigate Open Source Software and (ii) is developed by Subscriber for commercial distribution to more than one End-User.

13. Customer means those individuals and entities that have entered into Support Agreements with Apigate for the provision of Support Services.

14. Customer Data means any information that is provided by the Customer to Apigate as part of the Customer's use of Support and Services, including any information derived from such information;

15. Customer’s Personnel means those employees of the Customer assigned to the provision of the Services and, where appropriate, any replacements of such employees;

16. Development Support means support and assistance with systems deployed in development, staging, testing or trial environments in accordance with the Service Levels set out in Section 1.3 of the Support Service Policy.  For clarification, a system under development covers all systems and processes that are being evaluated or prepared for production.

17. Development Support Services Term means the term specified in Section 2.2.3(d) of the Agreement;

18. Documentation means any current user guides, operating instructions, release notes, update announcements, installation guides, online help files regarding the use of the Supported Apigate Open Source Software, manuals or other materials that are generally made available with the software by either the Apache Software Foundation or Apigate, depending on the specific software product.

19. DPA means applicable data protection legislation and regulations;

20. Dispute Resolution Procedure means the procedure described in section 23 of the Agreement;

21. End User means the Customer or a third party licensed to use a Combined Product internally and not for distribution. 

22. Error means either (a) a failure of the Supported ApigatePro Open Source Software to conform to the specifications set forth in the Documentation, resulting in the inability to use, or restriction in the use of, the software, a runtime failure of the systems under Managed Cloud hosting provided by Apigate, and/or (b) a problem requiring new procedures, clarifications, or additional information.  It does not include development of new features.

23. Fees means the fees for the Support and Services payable to Apigate in accordance with section 10 of the ApigatePro General terms and SOW in force from time to time;

24. First Level Support includes (a) call acceptance from Customer or End Users with diagnosis of problems to determine if they relate to hardware, operating software or application software whether provided by Apigate, Customer, or any third parties; and (b) investigating and collating all Incidents reported by the End User and attempting to apply Workarounds, Patches, and/or Service Packs supplied by Apigate.

25. Fix means either a software modification or addition that, when made or added to the Supported Apigate Open Source Software, corrects the Error or Incident, or a procedure or routine that, when observed in the regular operation of the software, eliminates the practical adverse effect of the Error on Subscriber or End Users.

26. Force Majeure Event means a circumstance beyond the reasonable control of either or both parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, embargoes, epidemics, material and adverse changes in the financial and economic situation in the place where such party (which is unable to observe or perform on time the said obligation) is located, as per its address specified in this Agreement, or strikes or other labour disputes.

27. Hardware means all physical telecommunications, networking and computer equipment (including switches, routers, cables, servers, racks, cabinets and peripheral accessories) provided and used by Apigate to deliver Managed Services to the Customer;

28. Incident means a suspected Error raised by Customer or raised by Apigate as a result of monitoring a Managed Cloud deployment, through a support ticket in the Apigate support system. 

29. Insolvency Event means, in relation to a party, the occurrence of any of the following events: inability to pay its debts as they fall due; admission of its inability to pay its debts; general assignment, arrangement or composition with or for the benefit of its creditors; commencement of insolvency proceedings which has not been contested within ninety (90) days; passing of a resolution for voluntary winding-up, official management, liquidation or dissolution (other than pursuant to a consolidation, amalgamation or merger); appointment of an administrator, liquidator, receiver or similar official over its assets or any similar proceeding;

30. Intellectual Property Rights shall have the meaning as defined in the Intellectual Property Rights Policy.

31. Infringement Claim means a claim by any person that:

a. any of the systems, materials and all Intellectual Property Rights made available by Customer in connection with this Agreement;

b. Apigate's receipt of the systems, materials and all Intellectual Property Rights made available by Customer in connection with this Agreement;

c. Apigate's or any of its personnel's or sub-licensees' possession of, or use of, or dealings with, in accordance with any rights granted under this Agreement, systems, materials and all Intellectual Property Rights made available by Customer in connection with this Agreement; or

d. Infringes the Intellectual Property Rights of any third party.

32. Losses means all damages, losses, liabilities, costs or expenses arising out of or in connection with:

a. a right under this Agreement;

b. a cause of action in connection with this Agreement and/or the Services; or

c. any claims, actions or proceedings brought by any third party, 

in each case, including breach of contract, tort (including negligence) and any other available cause of action at Law.

33. Managed Cloud is a service in which Apigate can maintain the hosted Supported ApigatePro Open Source Software for which the Customer purchased Production Support, and for which Apigate provides support in accordance with the Service Levels as set out in Section 1.2 Support Service Policy.

34. Managed Services means the IT operations and other services, as more particularly described in the relevant SOW;

35. Patch means a way to distribute an update to the Supported ApigatePro Open Source Software, software components, media, printed materials, and online or electronic documentation that addresses a requirement or deficiency in the Supported ApigatePro Open Source Software.

36. Production Support means the support and maintenance of the Supported ApigatePro Open Source Software in a production environment in accordance with the Service Levels set out in Section 1.1 Support Service Policy.

37. Personal Data shall have the meaning as defined in the Personal Data Protection Policy;

38. Platform means the version of Apigate’s technology which is current at the Effective Date which Apigate will provide Support and Services;

39. Services means implementation services, development services, integration work to be performed by Apigate as set out in the relevant SOW;

40. Service Level Agreements or SLAs mean the service level agreements specified under the SOW;

41. Service Term means the duration of the applicable SOW;

42. Statement of Work (“SOW”) means the specification for Services as set out in one or more SOWs;

43. Subscription Start Date means the term specified in the SOW;

44. Support means support, maintenance and update services provided by Apigate in accordance with the Agreement and the Support Services Policy

45. Support Plan means First Level, Second Level and Third Level Support as defined in the Support Services Policy with the support services plan ( i.e. 24x7x365) purchased by the Customer in the SOW;

46. Support Services Policy means the document which indicates the specific terms of a Support Plan, including hours of support, means of providing support (trouble ticket system, email, etc.), response and resolution times, and other relevant terms, policies, and procedures;

47. Supported ApigatePro Open Source Software means the specific instances of open source software or upgrades thereof or that have been subsequently added to this Agreement identified in the SOW; such software is separately provided by Apigate or another party and is subject to the Apache License 2.0;

48. Second Level Support means problem diagnosis and Error corrections with respect to suspected Errors in the Supported ApigatePro Open Source Software reported by Customer, provision of Workarounds, Patches, and Service Packs that Apigate provides or creates from time to time,and responding to general advice and guidance types of questions regarding the Supported ApigatePro Open Source Software from Customer or forwarded to Apigate by Customer from supported End Users.

49. Service Pack means a collection of Patches that may be made available periodically to the Customer.

50. Support Agreement means an Apigate Subscription Agreement, addendum or amendment, work order, statement of work or other agreement between Apigate and Customer for the provision of Support Services (as they may be varied, supplemented, amended or replaced from time to time in accordance with the terms contained therein).

51. Support Services means Production Support, Development Support, and services set forth in the Support Agreement between Customer and Apigate.

52. Support Policy means the policies and procedures as set forth in the Support Service Policy.

53. Supported ApigatePro Open Source Software means the specific instances of open source software identified in a Support Agreement or upgrades thereof.

54. System Capacity – the maximum agreed traffic capacity of the system will be measured in Transactions Per Second (TPS).

55. Target Resolution Time means time within which Apigate's support team will provide a final resolution or Fix to the Incident and indicate its closure on the Apigate Support Portal to Customer, to the reasonable satisfaction of Customer.

56. Target Response Time is defined as time elapsed between the reporting of an Incident by the Customer or Apigate becoming aware of the Incident (whichever is earlier) and an Apigate Tecnical Support Engineer acknowledging the receipt of such report to Customer through the Apigate Support Portal and beginning the resolution process.

57. Target Workaround Time means the time within which Apigate’s support team will provide a Fix or a Workaround for an Incident to the reasonable satisfaction of Customer.

58. Term means the term of the Agreement as specified in the relevant SOW;

59. Transactions Per Second (TPS) - total of number of Northbound transactions and Southbound transactions on a Gateway/Hub within any specific minute, divided by 60.

60. Work Product shall mean the  deliverables in relation to the Services specifically defined in the SOW. Any Updates or any copies thereof provided to the Customer during Support shall not qualify as a Work Product;

61. Update means software components, media, printed materials, and online or electronic documentation that augments the capability or addresses a requirement or deficiency in the Supported Apigate Open Source Software; updates include patches or fixes obtained through the Apigate Update service or delivered directly to the Customer.

62. Workaround is a temporary solution for an Incident until a more permanent resolution by way of a Fix is arrived at by Apigate. Workaround will lead to the final resolution of an Incident by way of a Fix in accordance with the Target Resolution Time.

Introduction

This document sets forth the policies governing the provision of Apigate Support Services in accordance with a Support Agreement.

1. Service Levels

For each query or Incident, Apigate endeavors to respond and resolve the issue as quickly as possible.  Based on the Severity Level, issues receive priority treatment and Apigate acts aggressively to address the issue as soon as possible, and in any event to meet the Target Response Time, Target Workaround Time (if applicable), and Target Resolution Time associated with the Incident Severity. For queries or Severity Level 4 Incidents, while there is no fixed resolution time guaranteed, Apigate will make best efforts to provide a resolution as early as possible.

In the event that a Workaround is not reached for an Incident within the Target Workaround Time, or a resolution is not reached within the Target Resolution Time, taking into account any lags in the provision of necessary information by the Subscriber, the Incident will be escalated to the Apigate executive team and an Incident “war team” comprised of Apigate support engineer(s), Apigate executive(s), and Subscriber representative(s) will be convened and a response plan will be established, including technical assessment, mitigation strategy evaluation, resource allocations, and status update frequency.  The support team will work continuously under the direction of the war team until a final resolution is reached.

1.1 Production Support Customers

This is applicable for Customers, who have only purchased Production Support and manage Level 1 and Level 2 Support internally or through a 3rd Party. Apigate Support Team’s scope is to provide support for production escalations at Level 3. The details of the scope of this service level is explained in section 7.1

1.2 Managed Services Customers

This is applicable for Customers who have purchased Managed Services. Production Support is provided within the Managed Services scope and SLAs. The details of the operational scope of this service level is explained in section 7.2

1.3 Development Consultancy Customers

2.  Severity Levels

A Subscriber makes the initial determination of the severity level of Incidents, pursuant to the level of impact.  If the Incident is misclassified with respect to severity level or the type of service provided by Apigate, the support team, in consultation with and with the consent of the Subscriber, will reclassify the Incident accordingly.

3. Incident Scope

To be in scope for Production Support services, an Incident must affect the Supported Apigate Open Source Software in the production environment.  A system in production is one that performs, or assists in performing, legally binding transactions and is one used by end-users, where a failure of a system in production will have an immediate economic impact on the organization.

The scope of Production Support does not cover Development Support Incidents, which arise from the evaluation, development, testing, or preparation of Apigate products in a pre-production environment. Apigate recommends a package of concurrent Production Support and Development Support for customers who are regularly expanding applications on the Apigate platform.

To be in scope for Managed Services, an Incident must involve the deployment, upgrading, maintenance, network configuration, starting, stopping, monitoring, availability, or performance of the hosted products within the parameters of the deployment architecture provided to the Managed Services team, and does not include resolution of bugs, feature requests, or performance limitations. Prior to above transition there will be first line investigation and diagnosis following first level incident resolution by the Managed Services team.

A resolution to an incident may in some cases consist of advice to seek a solution elsewhere – namely when the issue is caused by a hardware failure, third-party software, Apigate products that have been heavily modified by someone other than Apigate, outside the many well-documented and supported extension mechanisms, or attempts to use the software in an environment or for purposes for which it was not designed or well outside the published specs, issues that are effectively requests for consultancy services, or if no progress can be made without an onsite visit (unless your subscription includes this feature.)

We also may suspend the SLA for an incident – or for the entire support account if the issue is not addressed promptly – if your subscription lapses, if we find you are using any Apigate software in production without a subscription (even if the incident does not directly affect the unsupported software), if you have exceeded any limits or failed to conform to additional license terms defined in your subscription, if you are using the support system improperly or abusively, or if you are using the software for illegal purposes.

For us to provide good service, we often need your help with the incident: prompt response to requests for information through our support system, following our advice or instruction on a resolution, properly installing Patches or Service Packs that are part of the resolution. On a Severity Level 1 Incident we expect you to make resources available on a 24x7 basis to assist Apigate in resolving the Incident.  Our Support Levels are predicated on your sufficient involvement.

4. Updates

If Apigate determines that a Patch is required in order to remedy an Error in one or more Supported Apigate Open Source Software components, which Apigate will consider acting reasonably and in good faith, Apigate will identify or develop a Fix, build and certify the Fix into a Patch and make that Patch available to Subscribers.  Apigate will provide a Fix it to the provider or development community for the software component, who will decide if the Fix will be committed into the software component’s source code tree.

Patches are cumulative – new patches issued by Apigate include or will depend upon previous patches made to the affected component.  Subscribers are encouraged to stay up to date with all relevant Service Packs from Apigate.

5. Upgrades and Lifespan

One of the advantages of open source software is the availability of frequent upgrades.  Subscribers are encouraged to upgrade regularly.  Upgrading to a newer minor or major version does not invalidate your subscription.

Apigate commits to support each release of the Supported Apigate Open Source Software for a minimum of three years.  But rather than simply shutting down support after that, we also offer renewals for legacy versions for at least seven years from the initial release.  Because the customer base for old software shrinks, the costs of maintaining expertise and performing support functions grow, and we want to provide Subscribers meaningful encouragement to take advantage of upgrades to get the most out of the software, we assess a Legacy Surcharge.  Legacy Surcharge rates represent a percentage of Subscription fees, as detailed below:

Legacy Surcharges can easily be avoided with periodic version upgrades.

6. Support Operations Model

Apigate Support Operation Model for Managed Services customers.

Apigate Support Operation Model for Production Support (L3) customers.

7. Support Levels and Operational Scope

7.1 Production Support (Level 3 Support)

7.2 Managed Services

8. Creating and Managing Support Tickets

Subscribers are provided instructions on accessing the Apigate support portal at  https://support.wso2telco.com.  New users can be added through an authorized request to tech-ops@apigate.com.

When the Subscriber encounters an Incident or has a query in relation to the Support Services, the Subscriber may raise a support ticket with Apigate for the Incident by visiting the Apigate online support portal or by calling the support telephone number (if eligible).  To ensure we can properly address the issue. If so, please ensure that you:

  • Follow specific guidelines posted on the support portal on how to raise support tickets.
  • Correctly classify the issue as either an Incident or a query and provide an initial Severity Level.
  • Provide sufficient information with your report so Apigate can replicate or otherwise understand the Incident and respond appropriately.
  • Engage promptly with Apigate's support team to provide any additional information requested.
  • Work with the End Users in your organization to ensure their participation as necessary with the process and satisfaction and the outcome.

9. Changes to or Discontinuance of Support Services

Subject to the terms of the Support Agreement entered between the Subscriber and Apigate, Apigate reserves the right to modify this Support Services Policy at any time and for any reason, including to meet the business and legal requirements in individual countries around the world.

10. Questions

Questions or correspondence about this policy can be directed to the Business Operation Representatives and the commercial Representatives as specified in the SOW.

End-User License Agreement

Apigate's Update End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Apigate for the Apigate software updates you download and install (the "UPDATES".) By installing, copying, or otherwise using this UPDATE you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, do not install or use the UPDATE. The UPDATE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The UPDATE is licensed, not sold.

1.  Definitions

A PRODUCT is a software package made available by Apigate under the Apache License 2.0 and subject to the terms thereof.

An UPDATE is a software component made available by Apigate that augments the capability or addresses an issue with a PRODUCT.

A SUPPORTED PRODUCT is a PRODUCT that is covered by a commercial agreement between the end user and Apigate, or between the end user and a third party (OEM) that has a commercial agreement with Apigate.

PRODUCTION USE of a PRODUCT is when the product participates in a system that performs or assists in performing, transactions and operations on behalf of the system’s end users. Use of a system for the purpose of its evaluation, development, testing, quality assurance, backup, or archive, are not considered to be PRODUCTION USE.

2.  Grant of License

The UPDATE is licensed as follows:

a) Installation and Use. Apigate grants you the right to install and use copies of the UPDATE in a PRODUCT, except that the UPDATE may only be used IN PRODUCTION on a SUPPORTED PRODUCT or in a PRODUCT that was a SUPPORTED PRODUCT at the time Apigate issued the UPDATE.

b) Backup Copies. You may also make copies of the UPDATE as may be necessary for backup and archival purposes.

3.     Other Rights and Limitations

a)  Maintenance of Copyright Notices. You must not remove or alter any copyright or license notices on any and all copies of the UPDATE.

b)  Modification. You must not modify, alter, decompile, disassemble, translate, or reverse engineer the UPDATE.

c) Distribution. You must not distribute copies of the UPDATE to third parties.

d)  Rental. You must not rent, lease, or lend the UPDATE.

e) Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the UPDATE.

4. Termination

Without prejudice to any other rights, Apigate may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the UPDATE in your possession. Termination or expiration of this Agreement shall not affect end users’ rights to use any WSO2.TELCO PRODUCT in accordance with the terms and conditions of the applicable EULA, or to receive Support in accordance with a support agreement, or other agreement as may be applicable.

5. Copyright

All title, including but not limited to copyrights, in and to the UPDATE and any copies thereof, are owned by Apigate or its Suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the UPDATE is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content. All rights not expressly granted are reserved by Apigate.

6. No Warranties

UNLESS EXPRESSLY PROVIDED HEREIN TO THE CONTRARY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ANY AND ALL SUPPORT AND SOFTWARE INCLUDING UPDATES PROVIDED BY APIGATE HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NO WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY APIGATE OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. NOTHING STATED IN THIS AGREEMENT WILL IMPLY THAT THE OPERATION OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ERRORS WILL BE CORRECTED.

7. Limitation of Liability

IN NO EVENT WILL APIGATE BE LIABLE FOR ANY INCIDENTAL INDIRECT, SPECIAL, OR CONSEQUENTIAL COSTS OR DAMAGES INCLUDING, WITHOUT LIMITATION, DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS; FAILURE TO REALIZE EXPECTED SAVINGS; LOSS OF OR DAMAGE TO DATA; OR SOFTWARE RESTORATION, REGARDLESS OF WHETHER ANY OF THE FOREGOING ARE FORESEEABLE, AND REGARDLESS OF WHETHER APIGATE HAS BEEN NOTIFIED OF THE POSSIBILITY OF ANY OF THE FOREGOING. THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY; INCLUDING NEGLIGENCE; MISREPRESENTATION; BREACH; LIBEL; INFRINGEMENT OF PUBLICITY, PRIVACY, OR INTELLECTUAL PROPERTY RIGHTS; OR ANY OTHER CONTRACT OR TORT CLAIM.

1.  INTRODUCTION
1.1. Apigate Sdn Bhd (“Apigate") is committed to protect personal data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction. 

1.2. We recognise the importance of personal data to our business and the importance of privacy rights to individuals about whom we process personal data. This Policy is intended to assist   you to comply with the requirements of the Personal Data Protection Act 2010 (“PDPA”). This Policy may not be limited to protecting personal data but may also extend to all information which we hold. 

1.3. The PDPA includes a number of defined terms which are used in this Policy. These terms are: 

          i.  ‘personal data’ means information in respect of commercial transactions that relates directly or indirectly to the end customer, who is identified or identifiable from that information or   information from which an individual is identifiable or could reasonably be identified (either by itself or in combination with other data) or any network or transaction information and other technical information related or connected to an individual that according to best digital services industry practice should be treated the same as ‘personal data’ or from other  information in the possession of Apigate, including any sensitive personal data and expression of opinion; 

         ii.  ‘processing’ means virtually anything we do with personal data such as collecting, recording, holding or storing the personal data or carrying out any operation or set of operations on the personal data, e.g. organisation, adaptation, alteration, use, disclosure, erasure or destruction; 

2. YOUR RESPONSIBILITY 

2.1  Personal Data provided by you: In relation to Personal Data provided by you to Apigate in connection with the Services, you warrant and represent to Apigate that you have obtained or have procured sufficient informed consent from each relevant individual in order for: 

          (a)  Apigate; 

          (b)  Any Southbound/Northbound Partner of the Services; and 

          (c)  Apigate's contractors and subcontractors,  to collect, use, handle, store, disclose, transfer (collectively known as “Process”) the Personal Data in accordance with the ApigateHub General Terms. 

2.2  Personal Data Processed by Apigate: In respect of the Personal Data provided by you to Apigate, Apigate will: 

          (a) Process the Personal Data and use any other information supplied by you solely to provide the Services as specified in the Service Order Form or any related documents; 

          (b)  comply with, and ensure that the officers, employees, agents, contractors and subcontractors of Apigate comply with the data security obligations and the security measures, and immediately notify you of any breach upon becoming aware of such breach; 

          (c)  ensure that the accuracy of the Personal Data received continues to be maintained; 

          (d)  immediately forward to you communications from the relevant individuals, regulatory bodies, law enforcement authorities and other third parties concerning requests or access to, or disclosure of, the Personal Data and not respond to or act on such communications without your prior consent, unless otherwise required by Law; and 

          (e) on request or on the expiry of this Agreement, delete or return all existing copies of the Personal Data to you, unless otherwise required by Law. 

2.3  Apigate appointing a contractor or subcontractor: Where Apigate appoints a contractor or subcontractor to assist in providing the Services and such assistance includes the Processing of Personal Data on your behalf, then, subject always to compliance with this data protection term by Apigate and the contractor or subcontractor, you hereby grant to Apigate a delegated authority to appoint such contractor or subcontractor to process Personal Data. 

2.4 Personal Data provided to you: To the extent that Personal Data is provided to you by Apigate or the relevant parties in connection with the Services, you must: 

          (a) only process such Personal Data to the extent necessary to receive the Services or otherwise to comply with the Law; 

          (b) comply with the privacy legislation, and not do any act or engage in any practice that would breach any Privacy Legislation, or do any act or engage in any practice which would cause Apigate or the Relevant Parties to breach any Privacy Legislation; and 

          (c) ensure that sufficient technical and organisational security measures are adopted in relation to the Personal Data, including such measures to protect Personal Data from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction. 

Information required for invoicing or audit purposes relating to this Agreement may be retained in accordance with any requirements of applicable Law.

1. INTRODUCTION
1.1.  Apigate Sdn Bhd (“Apigate") is committed to protect the Intellectual Property Rights from any loss, misuse, modification, unauthorised or accidental access or disclosure, alteration or destruction. 

1.2. We recognise the importance of the Intellectual Property Rights to our business and this Policy is intended to assist you to comply with the requirements of the Intellectual Property. 

1.3. This policy includes the defined terms as follows:    

Intellectual Property Rights means all present and future intellectual property rights, including: 

     (a) patents, copyright, circuit layout rights, registered designs, trademarks, business names, product names, and any right to have Confidential Information kept confidential; and 

     (b) any application or right to apply for registration of any of the rights referred to in (a) above.

2. YOUR RESPONSIBILITY    

2.1. IPR ownership: You acknowledge that you will not acquire any Intellectual Property Rights residing or subsisting in, or other rights or ownership in relation to, any Data under or in connection with the Service except as expressly provided otherwise. 

2.2. No other IPR ownership: Except as otherwise set out in the ApigateHub General Terms or the Service Order Form, neither party shall receive any right, title or interest in respect of any Intellectual Property Rights owned or made available by or on behalf of the other party in connection with the Service. 

2.3. Grant of rights, consents and licences by you: You shall grant and/or procure from any relevant third parties (for example, your licensors), all necessary rights, consents and licences as may be required by Apigate to the extent necessary: 

     (a) to enable Apigate to provide you with the Services for your consumption and use thereof as contemplated by the ApigateHub General Terms or the Service Order Form; and   

     (b) otherwise for Apigate to exercise its rights and perform its obligations under the ApigateHub General Terms or the Service Order Form which shall include but not limited to the following: (i) a non-exclusive, world-wide, royalty-free, non-transferable licence (which is only revocable on termination or expiry of the Services in accordance with the provisions contained in the ApigateHub General Terms) to use the Systems, Data and Materials made available by you;  

              (ii)  to interface with your Systems; and 

              (iii) to use, copy, modify, perform, display, execute, install and distribute any Intellectual Property Rights owned or made available by or on behalf of you in connection with this Agreement or any of the Services (including, marketing the Services and/or identifying you as the receiver of the Services), subject to your branding guidelines. 

3. Rights, consents and licences extended to other parties: You acknowledge that such rights, consents and licences contemplated under this policyshall also be extended to other relevant third parties (for example, Apigate’s contractors, subcontractors, infrastructure or software providers and other parties involved in the provision of the ApigateHub Exchange and Services). 

4. Third party’s licence: Where it is necessary for you to procure a licence from a third party, the terms and conditions of that licence will apply to the extent that those terms and conditions are set out in the ApigateHub General Terms or the Service Order Form or in a separate licence agreement between Apigate and the relevant third party. 

5. Grant of rights, consents and licences by Apigate:  Apigate hereby grants to you: 

          a. a non-exclusive, royalty-free, non-transferable licence (which is revocable if Apigate has suspended or terminated the ApigateHub Exchange or the Services (in whole or part) pursuant to the ApigateHub General Terms) in the Territory to interface with the ApigateHub Exchange; and            

          b. the right to use Apigate’s and its licensors’ Intellectual Property Rights to the extent provided by Apigate and relating to the ApigateHub Exchange for the exercise of your rights and the  performance of your obligations under this Agreement, including marketing the Services and/or identifying Apigate as the provider of the Services or the ApigateHub Exchange, subject to Apigate’s branding guidelines. 

6. Open source software: The ApigateHub Exchange contains certain components which are third party open source components ("OS Software"). The OS Software distributed under the Licence is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. Apigate excludes all liability to you for any and all losses (including direct, indirect and consequential damages) caused by or in connection with your use of the OS Software. Please refer to the Licence for the specific language governing permissions and limitations under the Licence.  

7. No registration of IPR: Each party must ensure that the other party (including any third parties acting on its behalf): 

           (a) do not, register or take steps to register, any Intellectual Property Rights owned by the other party; and 

           (b) except as expressly set out in this provision titled “Intellectual Property Rights”, do not, without the prior written consent of the other party, use any Intellectual Property Rights owned by that party. 

8. Goodwill: All goodwill resulting from any use of a party's name, brand, logo, trade mark, trade name, business name, product name or other mark shall accrue only to that party. 

9. IPR ownership notices: Each party shall ensure that each copy of any Materials provided to it by or on behalf of the other party under or in connection with this Agreement at all times bears any copyright, trade mark, confidentiality and other notices that appear on those Materials as provided to that party by or on behalf of the other party.