These Master Terms will apply to all Goods, Services, Hardware and materials sold or provided by OniGroup.
Each Order Form will form a separate, and separately terminable, agreement (an “Agreement”) between the Customer and OniGroup and may be subject to various Addendum(s).
The applicable addendum(s) will be specified in each Order Form
This Agreement sets out the terms that will apply to all Goods, Services, Hardware and Materials sold, supplied or performed by OniGroup to the Customer and the Customers use of such Goods and Services; where OniGroup supplies such Goods and Services based on a written OniGroup quotation document (Order Form), except where OniGroup has expressly agreed in writing to provide such Goods and Services pursuant to a separate written agreement.
You acknowledge that, unless expressly agreed to by OniGroup in writing, the terms and conditions included on a document issued by you (such as a confirmation, receipt including the terms on any pre-printed receipt, or your standard retainer document) will not apply to the sale or supply of Goods and Services by OniGroup to you or otherwise vary these terms and conditions.
(a) Unless otherwise agreed to by both parties, this Agreement commences on the Commencement Date and will continue for a period of 12 months or until it is terminated in accordance with clause 11. This applies to all Goods, Services, Hardware and Materials sold, supplied or performed by OniGroup excluding any and all Google Cloud Platform agreements.
(b) For the avoidance of doubt the Term of all Google Cloud Platform and Google Maps Platform agreements are defined and outlined in accordance with clause 16.1.
Order Forms provided to the customer by OniGroup, in accordance with the terms of this Agreement, will include, without limitation:
(a) If applicable, the Software License to be provided;
(b) If applicable, the Google technology package;
(c) If applicable, the Services to be provided by OniGroup, including the development of any Software by us;
(d) If applicable, any Support Services;
(e) The Fees payable by the Customer;
(f) The Invoicing Schedule.
(a) If either party requires a change to any Order Form, that party must issue the proposed changes with 7 days written notice. Changes will only take effect if:
(i) both parties agree to the proposed changes; and
(ii) the requested changes do not concern Goods, Services, Hardware or Materials that OniGroup has already secured or completed on behalf of the Customer.
(b) If a change request has failed according to (a)(ii), change may only take effect if the customer reimburses OniGroup for the associated cost.
(c) The parties agree that they will not exercise the ability to propose Change Requests arbitrarily in recognition that both parties are committed to the Agreement.
(a) OniGroup grants to you a non-exclusive, licence to use, copy and distribute, within your group of companies only.
(b) Each party agrees to reproduce the copyright notice on any copies made under the licence granted above.
(c) OniGroup agrees to provide access to the Software License or applicable Technology ordered by the Customer upon full payment, subject to Section 6 of this agreement.
(d) Title to any License provided to the customer will remain with OniGroup until all monies owing are paid.
(a) Where there is supply of Hardware or Materials, title to such hardware or equipment shall transfer to the Customer upon delivery.
(b) Clause (a) shall not transfer title upon delivery if there remains funds owing subject to the Order Form agreement. In such instances, the customer agrees to promptly return any Hardware or Materials, in its possession, custody or control if required by OniGroup.
Unless otherwise specified:
(a) title and full ownership rights to all associated Intellectual Property Rights will remain with OniGroup or, where applicable, Google or our third party providers; and
(b) OniGroup will retain all right, title and interest in and to all our methodologies, processes, techniques, ideas, concepts, trade secrets, documents, materials and know-how embodied in the Software that OniGroup may supply in connection with the Licensed Software.
(a) Issues or problems with any Hardware or Software functionality including, but not limited to, warranty claims, are to be resolved between you and the relevant owner or manufacturer directly, subject to the terms of the Hardware manufacturer's warranty or Software manufacturer's warranty and its EULA, as the case may be.
(b) OniGroup agrees, where possible, to provide incidental and reasonable assistance to you during this process.
(a) Unless otherwise agreed, OniGroup will perform Professional Services during Business Hours of each Business Day.
(b) Where applicable, details of Services to be performed by OniGroup will be contained in a Proposal Document.
(c) We will perform the Services utilising resources, employees and subcontractors as OniGroup deem necessary and appropriate.
(a) You agree to ensure that all our Personnel, agents or subcontractors are sufficiently trained under this Agreement in accordance with this clause 4.1.
(b) You agree to ensure that all our Personnel, agents or subcontractors are aware of your policies and procedures.
(c) You agree to cooperate fully and act reasonably and in good faith to ensure the timely progress and fulfilment of any obligations under this clause.
(a) You agree to be responsible for all site preparation as required to enable efficient delivery and implementation of the Goods and/or Services.
(b) You agree to cooperate fully and act reasonably and in good faith to ensure the timely progress and fulfilment of any obligations under this clause.
(a) Estimated Delivery Dates are based on information available to us from suppliers and are subject to change at any time, without prior notice.
(b) OniGroup will not be held liable for Delays in delivery caused by a supplier or for other reasons beyond our reasonable control.
(c) OniGroup agrees to cooperate fully and act reasonably and in good faith to ensure the timely progress and fulfilment of any obligations under this clause.
You agree to pay OniGroup the Fees in accordance with this clause 6. Terms relating to the sale of Google Cloud Platform and Google Maps Platform access are located in clause 16.
(a) OniGroup will outline the Fees associated with any Goods, Services, Hardware and Materials ordered in the Order Form and subsequent Invoice.
(b) Order forms are not to be taken as a fixed price quote for professional Services to incidental costs, unless explicitly agreed upon by both parties.
(c) OniGroup will provide an additional Invoice for additional Incidental Costs, Expenses or excess License Usage(Overages).
OniGroup will provide a rendered invoice to the Customer.
An invoice will contain the following information:
(a) the customer's details
(b) the amount claimed in the invoice due for payment;
(c) the associated products services;
(d) Applicable taxes;
(e) invoicing schedule.
(f) bank account payment details.
Payment is to be made within thirty (30) calendar days from the date of receipt of a rendered invoice unless specifically specified otherwise on the order form.
(a) Any fees payable in accordance with the Order Form, upon termination, suspension and any other amounts referred to in this Agreement, including the Fees, exclude applicable taxes unless otherwise stated.
(b) Without limiting part (a) applicable taxes will only be charged to those customers who are liable to such Tax in accordance with Tax law of England.
(c) If applicable taxes become payable on an Order Form made under or in connection with this Agreement, an additional amount is payable by the Customer equal to the amount of Tax payable on that Order Form in accordance with the Tax Law.
(d) This additional amount will be reflected in the Invoice provided to the Customer, if the applicable taxes are not reflected appropriately on the corresponding invoice it is the responsibility of the customer to pay the additional applicable Tax on top of the agreement amount.
(a) OniGroup retains all future Intellectual Property Rights in any Developed Software created exclusively for the customer. For the avoidance of doubt, all existing Intellectual Property Rights in the Developed Software will belong to OniGroup.
(b) For the avoidance of doubt, and in accordance with clause 3.3, any Intellectual Property Rights in Licensed Software created by a third party provider remains the property of the third party provider.
(c) By virtue of paragraph (a), all future Intellectual Property Rights in the Developed Software will immediately vest in OniGroup upon creation.
(a) Warranties to any hardware or equipment shall be provided by the Original Manufacturer of such hardware or equipment.
(b) OniGroup agrees to facilitate the Hardware warranty claim (including the provision of any associated Materials) for the customer on behalf of the Original Manufacturer.
OniGroup warrants that:
(a) All Services will be supplied in a diligent and professional manner with the degree of skill and care that is normally exercised by recognised professional or trades persons or entities which supply services of a similar nature;
(b) OniGroup Personnel will be sufficiently skilled and qualified to perform the Services;
(c) OniGroup will use commercially reasonable efforts to perform the Services (including the provision of any associated Materials) in accordance with a OniGroup Proposal document and any milestones set out therein.
Your use, rights and obligations in respect of Licensed Software is governed by the applicable EULA, unless it is varied by agreement between the parties to that EULA. You agree to execute and be bound by the terms of the Licensed Software owner's EULA. You accept the Software owner's warranty in relation to the Licensed Software.
OniGroup represents that:
(a) Each claim by you for the return of Hardware or Materials shall be dealt with pursuant to our Goods returns procedure policy and procedure.
(b) Any claim made under clause 9.4 will only be considered if:
(i) the claim is lodged within the designated manufacturer's warranty period which commences at the Commencement Date and;
(ii) the Hardware or Materials do not function only as a result of a manufacturing default.
(c) If a claim is successful under clause (b) the defective Hardware or Equipment will be exchanged by OniGroup at the expense of the Original Manufacture excluding the cost of shipping and handling.
(d) The cost of shipping and handling associated with any returns lodged under this clause will be covered by the Customer.
(a) Each of the representations and warranties contemplated by this Agreement
(i) is to be construed independently of the others;
(ii) is not limited by reference to any other representation or warranty; and
(iii) is not to be construed as excluding or limiting any other rights or remedies available in relation to the relevant subject matter under this Agreement or at law.
(a) A party (Indemnifying Party) will indemnify the other party (Indemnified Party) against any claim, action, proceeding, damage, loss, liability, cost, charge, expense (including reasonable legal costs and expenses on a solicitor and client basis), outgoing or payment paid, suffered or incurred out of or in connection with:
(i) any breach of Law arising out of any breach of this Agreement by the Indemnifying Party;
(ii) any fraud, or wilful breach or repudiation of this Agreement, by the Indemnifying Party;
(iii) any negligent or otherwise wrongful act or omission of the Indemnifying Party;
(iv) any claim by a third party arising out of a breach of this Agreement by the Indemnifying Party;
(v) any loss of or damage to property caused by any act or omission of the Indemnifying Party.
10.2 CUSTOMER’S LIABILITY
Customer agrees to be responsible for and indemnify OniGroup for violations of:
(a) these terms and;
(b) any relevant Acceptable Use Policy (AUP) and;
(c) Service Specific Terms
In each case caused by the Customer (and Customer End Users), Customer Data, Applications, or Projects.
(a) Either party (the first party) may terminate this Agreement immediately by notice to the other party if:
(i) the other party commits a breach of this Agreement which is capable of remedy, and fails to remedy that breach within 30 calendar days from the date the first party notifies the other party of the breach;
(ii) the other party commits a material breach of any of its obligations under this Agreement, which is not capable of remedy; or
(iii) an Insolvency Event occurs in relation to the other party. You must inform OniGroup in writing as soon as it becomes aware that an Insolvency Event has occurred or is likely to occur in relation to the Customer.
(a) OniGroup may terminate this Agreement on 30 calendar days' notice to the Customer if the Customer:
(i) regularly or habitually commits breaches of this Agreement (which individual breaches need not be material); or
(ii) commits a number of breaches (which individual breaches need not be material) at the same time or over a period of time.
(a) OniGroup may terminate this Agreement immediately by notice if you become unable to pay your debts as and when they become due and payable.
(b) OniGroup may also pass on any fees or additional charges incurred during the process of recovering any debt owed under this agreement through an external party.
(c) Without limiting clause 11.5, if a contract is terminated due to failure to make payment all outstanding funds will incur a 10% penalty per month until the funds are paid in full.
Upon termination or expiry of this Agreement for any reason, the Customer must promptly provide OniGroup with all work products developed and/or provided to the customer by OniGroup including any Developed Software (whether being completed or work in progress) and all associated Intellectual Property Rights.
(a) Upon termination of this Agreement, the Customer must within Thirty (30) calendar days pay OniGroup for:
(i) any Fees in relation to Services already performed; and
(ii) invoiced amounts for Licensed Product; and
(iii) invoiced amounts for Hardware, Software or Materials already delivered.
If this Agreement is terminated in part, the terms of this Agreement will continue to apply to those parts of the Agreement that remain in force following the termination in part until those parts of the Agreement expire or are terminated.
Additional clauses relating to the termination of Google Cloud Platform and Google Maps Platform agreements are stipulated in clause 16.
(a) Each party must keep confidential, and not use or disclose, any Confidential Information of the other party, except as permitted by this Agreement.
(b) The obligation of confidence in paragraph (a) above extends to Confidential Information provided to or obtained by a party before entering into this Agreement.
The obligation in clause 13.1(a) does not apply to Confidential Information that is:
(a) in the public domain otherwise than as a result of a breach of this Agreement or another obligation of confidence;
(b) independently developed by the recipient; or
(c) already known by the recipient independently of its interaction with the other party and free of any obligation of confidence.
This Agreement and all rights and obligations hereunder may be assigned or transferred by OniGroup in whole or in part at any time.
The Customer may not assign or transfer in whole or in part its rights and obligations under this Agreement without the prior written consent of OniGroup.
The Customer may not subcontract the whole, or any material part, of its obligations under this Agreement without the prior written consent of OniGroup.
(a) Neither party will be liable for a failure or Delay in performing its obligations under this Agreement to the extent that such failure or Delay:
(i) is directly attributable to a Force Majeure Event; and
(ii) could not have been prevented by reasonable precautions or circumvented or minimised by the non-performing party (eg by means of alternative sources or work-arounds).
(b) If a Delay is directly attributable to a Force Majeure Event Delay exceeds 30 calendar days, either party may immediately terminate this Agreement by giving notice to the other party.
(c) For clarification, OniGroup is excused from performing our obligations to the extent we are prevented by circumstances beyond our reasonable control including, but not limited to, acts of God, natural disasters, acts of war, riots and strikes.
This Agreement is comprised of various documents, which will, if there is any inconsistency between them, prevail according to the following order of priority with the higher taking precedence to the extent of that inconsistency:
(a) Special Terms included in an Order;
(b) Order Form;
(c) Clauses of this Agreement;
(d) Proposal Document and any other documents incorporated by reference in this Agreement,
If two or more provisions having the same priority deal with the same subject matter, then:
(e) to the extent there is no inconsistency between the relevant provisions, all of those provisions will apply; and
(f) if there is an inconsistency between the relevant provisions, the more onerous provisions will apply to the extent of that inconsistency.
Nothing in this Agreement is to be construed as creating a partnership or joint venture between the parties nor to constitute any party the agent of the other party.
(a) This Agreement is governed by the laws of Malaysia.
(b) Each party irrevocably:
(i) submits to the non exclusive Jurisdiction of the courts of Malaysia; and
(ii) waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum; and
(iii) waives any immunity in respect of its obligations under this Agreement that it may acquire from the Jurisdiction of any court or any legal process for any reason including any immunity relating to the service of notice, attachment prior to judgment, attachment in aid of execution or execution.
(a) A party is not entitled to rely on a Delay in the exercise or non-exercise of a right, power, authority, discretion or remedy arising from a breach of this Agreement or on a default under this Agreement as constituting a waiver of that right, power, authority, discretion or remedy.
(b) A party may not rely on any conduct of another party as a defence to exercise of a right, power, authority, discretion or remedy by that other party.
(c) Failure or Delay by either party to enforce any provision of this Contract shall not be deemed a waiver of future enforcement of that or any other provision, unless agreed in writing by the relevant party.
A variation of any term of this Agreement must be in writing and signed by both parties to vary this Agreement.
Each party must do all things and execute all further documents necessary to give full effect to this Agreement.
This Agreement supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
(a) This Agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute one instrument.
(c) A party may execute this Agreement by signing any counterpart.
15.9 TO THE EXTENT NOT EXCLUDED BY LAW
The rights, duties and remedies granted or imposed under the provisions of this Agreement operate to the extent not excluded by law.
If any provision of this Agreement is held to be invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision which will be deemed deleted.
The following applies exclusively to Google Cloud Platform and Google Maps Platform agreements.
The term of the Google Cloud Platform and Google Maps Platform agreement shall be from:
(a) the Google Cloud Platform and Google Maps Platform Commencement Date and;
(b) continuing for a period of 12 months called the “Initial Term” and;
(c) At the end of the Initial Term, this Agreement shall automatically continue thereafter on the same terms and conditions. This shall commence immediately at the expiration of the Initial Term and the agreement shall be ongoing between Onigroup and the Customer.
(d) OniGroup will provide an additional Invoice for additional Incidental Costs, Expenses or excess License Usage(Overages).
Termination of a Google Cloud Platform and Google Maps Platform agreements can only occur if:
(a) Agreement has passed the Initial term and;
(b) Customer provides OniGroup with written notice of their intention to terminate the agreement and;
(c) notice of this intention is provided in writing no less than 60 day prior to the Customer's next scheduled invoice and;
(d) all outstanding invoices, charges and overage costs have been settled.
In this Agreement:
Agreement means this document including any relevant partner addendum.
Auditor means any auditor, inspector, regulator or other representative (with or without auditing backgrounds or skills) of OniGroup which it nominates in writing from time to time.
Business Day means a day excluding any Saturday, Sunday or public holiday or any other day that is a gazetted public holiday.
Business Hours means, 8:30 am to 5:30 pm on a Business Day.
Commencement Date means the date Customer and OniGroup agree to enter into and be bound by the terms of this agreement.
Confidential Information means, any trade secrets embodied in any information relating to, but not limited to, the commercial activities, product pricing, technologies, business processes, client relationships, strategic information and any other information related to the conduct of each party's businesses.
Confidential Information (2) of a party means any information:
(a) regarding the business or affairs of that party or its associated entities;
(b) regarding the customers, employees or contractors of, or other persons doing business with, that party or its associated entities;
(c) regarding the commercial arrangements between the parties;
(d) regarding product pricing, technologies, business processes, client relationships, strategic information;
(e) which is by its nature confidential or which is designated as confidential by that party;
(f) that the other party knows, or ought to know, is confidential.
Contract means, a legally binding document between both parties consisting of the relevant Order Form and these OniGroup terms and conditions.
Customer means partner to this agreement that is not OniGroup.
Delay occurs when a supplier:
(a) is late in complying with any provision of this Agreement for which time is critical or of the essence.
Delivery Date in respect of a particular item of Software to be licensed under this Agreement or a particular Professional Service to be rendered under this Agreement, means the delivery date specified in a relevant Order Form or Proposal Document.
Developed Software means:
(a) any OniGroup Software Enhancements, and any other software, software modifications, and software enhancements created by the OniGroup, its subcontractors or their Personnel in the performance of Professional Services, including any specific requests made regarding the implementation of Licensed Software; and
(b) any related Documentation and any other Materials created by OniGroup, its subcontractors or their Personnel in the performance of the Professional Services.
Documentation means manuals including release notes, reference guides, specifications or other documents relating to the Software or the Services provided to the Customer by OniGroup.
EULA means, the licence agreement governing the use of Software directly between you and the owner of that software.
Fees means all amounts payable by the Customer under this Agreement for the Goods, Services, Hardware or Materials set out in the Order Form or Invoice.
Force Majeure Event means fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, terrorist acts, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, transportation embargo, and strikes by employees of a third person. A strike by employees of a party or employees of a subcontractor of a party (or both) is not a Force Majeure Event unless the strike is part of an industry-wide campaign which does not arise out of a dispute between that party or subcontractor and one or more of its employees (proof of which will fall on the party claiming that the strike is a Force Majeure Event).
GCP Commencement Date means the date Customer and OniGroup agree to enter into and be bound by the terms of this agreement.
(That is, if the customer entered into the agreement on 17th January the commencement date would be 1st February)
Goods means either Hardware, Licensed Software or exclusively created Software procured or supplied pursuant to these terms and conditions, as the context admits.
Government Agency means any government or any governmental, semi governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Hardware means, any physical product manufactured by a third party, including any associated third party maintenance service contracts, as specified in an Order Form.
Incidental Costs means, delivery costs, tax, Installation, support or maintenance costs, preparation of the site, audit of your physical environments, overtime rates, and any miscellaneous expenses.
Initial Term means the first 12 months preceding the start of a Google Cloud Platform agreement.
Insolvency Event means one that is unable to pay its debts when they fall due for payment. This includes the occurrence of any one or more of the following events:
(a) corporate insolvency procedures which include voluntary administration, liquidation and receivership;
(b) personal insolvency procedures that apply to a person, which include bankruptcy and personal insolvency agreements.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world and includes rights in respect of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts.
Invoice means a document which contains the cost of any Licensed Software, Services and Hardware ordered from OniGroup by the Customer which, when applicable, will include Applicable Taxes.
Jurisdiction means the country of Malaysia
Law means any:
(a) law of Malaysia or another Jurisdiction, including County, local government legislation or any regulations, by-laws, declarations, ministerial directions and other subordinate legislation, including common law;
(b) code of conduct, writ, order, injunction or judgment.
Licence Fee means the fee payable for use of Licensed Software as specified in any Software Order.
License Usage means the consumption of the License Software quota purchased by the Customer.
Licensed Software means any software specified in an Order Form as being licensed to the Customer (excluding Developed Software).
Material means, literary works or other works of authorship that OniGroup may deliver to the Customer as part of a Service. The term "Material" does not include licensed software products, which are provided in accordance with their EULA.
OniGroup, us, our or we means ONIGROUP MALAYSIA SDN. BHD. (202101031231 (1431531-M)).
OniGroup Member means OniGroup and any other member of OniGroup.
Order means a Software Order and/or Work Order as the case may be.
Order Form means the document, executed by the parties, which contains the details of any Licensed Software, Services and Hardware ordered from OniGroup by the Customer.
Overages means use of any technology or license which exceeds the Projected Usage, allocated quota or outlined limits. Customers will be liable for incidental costs relative to the amount over the Projected Usage or excess quota of the technology consumed.
Personnel means the officers, employees, agents, contractors and subcontractors of a party, and includes the officers, employees, agents, contractors and subcontractors of any subcontractor.
Price means, the price payable for those Goods and Services as detailed in an OniGroup Order form and Invoice.
Professional Services means any of the following services:
(a) software development, including Software Enhancements or modifications or creation;
(b) specification preparation;
(c) project management;
(d) implementation support for Licensed Software;
(e) data conversion;
(f) any other services as agreed with the Customer, as specified in a Proposal Document.
Professional Services Fees means the fees payable for Professional Services as set out in an Order form.
Projected Usage means the Customer's expected monthly costs for use of the Google Cloud Platform based on their historical, proposed or scoped usage.
Resources means Personnel, facilities, systems, software, equipment, procedures, processes and other resources.
Risk means any reasonably foreseeable internal or external event or issue (whether relating to Personnel, process, technology or otherwise) that is likely to or could adversely affect the delivery or performance of the Good and Services.
Services means the Support and Maintenance Services, the Professional Services and any other services provided by OniGroup under this Agreement.
Software means the Licensed Software and the Developed Software.
Special Term means those special terms set out in an Order that are specific to that Order.
Tax means any tax, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding which is assessed, levied, imposed or collected by any Government Agency and includes any interest, fine, penalty, charge, fee or other amount imposed in respect of any of the above.
Tax Invoice has the meaning given to that term in the Tax Law and includes any document or record treated by the Commissioner of Taxation as a tax invoice or as a document entitling a recipient to an input tax credit.
Term has the meaning given to that term in clause 1.2.
Use includes install, use, access, modify, copy, develop, enhance, reproduce, distribute, transmit, perform and display.
Warranty means a warranty specified in clause 9.
You means, the customer entity specified in a quotation.