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TERMS OF SERVICE FOR BUSINESS-TO-BUSINESS PLATFORM
These terms and conditions govern the access to and use of the Business-to-
Business (“B2B”) Platform (www.dash.sofax.com) by the Stakeholder and
constitute an agreement between the Stakeholder and SofaX (each a Party”;
collectively, “Parties”). By using the B2B Platform, you as a Stakeholder agree to be
bound by the following terms and conditions and the general terms of service
published on the SofaX website (www.sofax.com) (collectively, the Agreement”).
SofaX reserves the right, at its sole discretion, to amend, modify or revise this
Agreement at any time without prior notice. The amended, modified or revised
Agreement shall become effective and binding on the Stakeholder as soon as it
has been published on the SofaX Platform. It is the Stakeholders responsibility to
check the SofaX Platform for the updated Agreement. Your continued usage of the
Services signifies your acceptance of any such amendments, modifications or
revisions.
1. DEFINITIONS AND INTERPRETATIONS
1.1. The following terms shall have the meanings set out below:
(a) Affiliate means any entity that is directly or indirectly controlled by, or
controlling, a Party, or any affiliate or subsidiary thereof;
(b) B2B Platform means an internal administrative webpage or
application, or other web services or interfaces provided by SofaX that
allows the Stakeholder to manage, among other things, its Content
Material and other associated products and services listing, including
but not limited to their details and information thereof;
(c) Confidential Information means any document, material, or
information proprietary to a Party that is disclosed to the other Party,
whether orally or in writing, that is designated as confidential or that
reasonably should be understood to be confidential given the nature
of the information and/or the circumstances of disclosure.
Notwithstanding the foregoing, Confidential Information shall not
include any information that:
(i) was publicly known and made generally available before the
time of disclosure by the Discloser;
(ii) becomes publicly known and made generally available after
disclosure by the Discloser to the Recipient through no action or
inaction of the Recipient;
(iii) is already in the lawful possession of the Recipient at the time of
disclosure;
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(iv) is obtained by the Recipient from a third party without a breach
of that third party's obligations of confidentiality;
(v) is independently developed by the Recipient without use of or
reference to the Discloser's Confidential Information; or
(vi) is disclosed by the Recipient pursuant to the Discloser's written
approval;
(d) Content Material means the product information, text, images and
any other relevant and/or legally required information relating to the
Products and/or Services, including but not limited to the trademarks
and other Intellectual Property Rights-related materials of the
Stakeholder or a relevant third party;
(e) Customers means a third party who purchases Products and/or
Services from the Stakeholder using the services on the SofaX
Platform;
(f) Customised Virtual Models means Stakeholder’s Virtual Showroom,
Stakeholder’s Virtual Products and Stakeholder’s Virtual Showroom
Pro;
(g) Discloser means the disclosing Party of the Confidential Information;
(h) Force Majeure means any event or cause beyond a Party’s reasonable
control, including but not limited to:
(i) act of God, explosion, flood, tempest, fire or accident;
(ii) war or threat of war, sabotage, insurrection, civil disturbance or
requisition, act of terrorism or civil unrest;
(iii) Acts, restrictions, regulations, by-laws, prohibitions or measures
of any kind on the part of any governmental, parliamentary or
local authority;
(iv) import or export regulations or embargoes;
(v) interruption of traffic, strikes, lock-outs or other industrial actions
or trade disputes (whether involving employees of SofaX or a
third party); and
(vi) health epidemics declared by the World Health Organization;
(i) Intellectual Property Rights means all copyrights, moral rights,
trademarks, service marks, design rights, rights in or relating to
databases, rights in or relating to confidential information, rights in
relation to domain names, and any other intellectual property rights
(registered or unregistered) throughout the world;
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(j) Laws means all legislation, statutes, rules, ordinances, regulations,
guidelines, by-laws, codes and judicial precedents or authorities of
Malaysia;
(k) Personal Data means any personal information, including but not
limited to those pertaining to SofaX employees, agents, consultants
and Customers, as defined by applicable personal data protection
Laws;
(l) Products means one or more items offered for sale by the
Stakeholder, including but not limited to fixtures, fittings, layout
designs, drawings, paintings, and copyrighted images;
(m) Recipient means the party receiving Confidential Information;
(n) Services means any services offered for sale by the Stakeholder;
(o) SofaX Services means the services specified in Section 2.1 of this
Agreement that are provided by SofaX;
(p) SofaX Platform means any applicable platform operated and made
available by SofaX, including but not limited to the SofaX mobile
application, SofaX web application, SofaX website, and B2B Platform;
(q) Stakeholder’s Virtual Products means Virtual Products rendered
using Content Materials provided by the Stakeholder;
(r) Stakeholder’s Virtual Showroom means Virtual Houses designed by
the Stakeholder using a combination of Virtual Products (including
the Stakeholder’s Virtual Products) and/or Virtual Props available on
the SofaX Platform;
(s) Stakeholder’s Virtual Showroom Pro means the Stakeholder’s
Virtual Showroom with enhanced visual quality through SofaX’s
advanced 3D rendering techniques;
(t) Virtual means pertaining to virtual reality;
(u) Virtual Houses means 3D models of houses modeled based on floor
plans, with a virtual walkthrough feature that can be used in a virtual
environment;
(v) Virtual Models means Virtual Showroom, Virtual Products, Virtual
Houses, Virtual Showroom Pro and Virtual Props;
(w) Virtual Products means 3D models of Products that can be used in a
virtual environment;
(x) Virtual Props means 3D models of decorative props that can be used
in a virtual environment;
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(y) Virtual Showroom means Virtual Houses with specific interior
designs using a combination of Virtual Products and/or Virtual Props
available on the SofaX Platform; and
(z) Virtual Showroom Pro means Virtual Showroom with enhanced
visual quality through SofaX’s advanced 3D rendering techniques.
2. SERVICES BY SOFAX
2.1. The SofaX Services consist of:
(a) providing access to the SofaX Platform for the following purposes:
(i) allowing Stakeholders to list and display their profiles and
Products and/or Services, including but not limited to
Stakeholders Virtual Products, Stakeholder’s Virtual Showroom,
and Stakeholder’s Virtual Showroom Pro; and/or
(ii) providing other ancillary services;
(b) providing Stakeholders with potential Customer leads; and
(c) providing any other additional services, including but not limited to
the rendering of Virtual Products, Virtual Houses and/or Virtual
Showroom Pro, and making available inspiring photo postings.
2.2. The SofaX Platform is a platform that allows Stakeholders to list their
Products and/or Services. SofaX does not take part in the actual transaction
between the Stakeholder and the Customers. The Stakeholder is solely
responsible and liable for all transactions involving its Products and/or
Services, including but not limited to ensuring that the sale is legally
authorised, the Products and/or Services are accurately described and
properly packaged, shipped and insured, applicable warranties are
provided and all other sale and after sale obligations, whether by law or
trade.
3. SOFAX’S RIGHTS & OBLIGATIONS
3.1. Notwithstanding any provision in this Agreement, SofaX shall have the
right, at its sole and absolute discretion, to amend, delay, suspend, or
remove the listing of, or to refuse to list any or all of the Stakeholder’s
Products or Services, including but not limited to the Stakeholder’s Virtual
Products, Stakeholder’s Virtual Showroom, and Stakeholder’s Virtual
Showroom Pro, or to deactivate the account(s) of the Stakeholder.
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4. STAKEHOLDER’S RIGHTS & OBLIGATIONS
4.1. SofaX shall list and display the Stakeholder’s Products and/or Services,
including but not limited to the Stakeholder’s Virtual Products,
Stakeholder’s Virtual Showroom and Stakeholder’s Virtual Showroom Pro,
on behalf of the Stakeholder. The Stakeholder shall provide SofaX with all
relevant and related information and Content Materials, including but not
limited to its Products’ and/or Services’ names, descriptions, prices and
images, and its logo, locations, operation hours and company identity for
the purpose of listing the Stakeholder’s Products and/or Services. If the
Stakeholder fails to provide SofaX with the relevant Content Materials,
SofaX may use any available Content Materials. The Stakeholder shall notify
SofaX in writing within three (3) business days if there are any changes or
corrections to the Content Materials published on the SofaX Platform.
Notwithstanding the foregoing, the Stakeholder shall be solely responsible
and liable for the listings of the Stakeholder’s Products and/or Services.
4.2. General Undertakings: The Stakeholder undertakes, represents, and
warrants that it will:
(a) obtain all necessary rights, licences, permits, or approvals required for
the offer and advertising of the Products and/or Services on or
through the SofaX Platform prior to their listing and will provide SofaX
with copies of these documents upon request. The Stakeholder shall
immediately notify SofaX in writing of any change or violation of such
rights, licences, permits, or approvals;
(b) ensure that the listing price for any Products and/or Services offered
to Customers through the SofaX Platform will not exceed the price
offered by the Stakeholder outside the SofaX Platform for the same
product in like or lesser quantities under similar terms and conditions.
Where a lower price is offered, the Products and/or Services listed on
the SofaX Platform shall benefit from that lower price;
(c) give SofaX written notice of any requirement or provision of any
contract that may conflict with any requirement or provision of the
Agreement; and
(d) ensure that any person filling-in or signing any document or
operating the B2B Platform account on behalf of the Stakeholder has
full power and authority to do so on behalf of the Stakeholder; and
(e) comply with all applicable Laws.
4.3. Negative Covenant: The Stakeholder undertakes, represents, and
warrants that it will not, directly or indirectly:
(a) publish or make SofaX to publish on the SofaX Platform any materials
that contain pornographic materials or political or religious content
or disclose any personally identifying information or private
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information about minors or any third parties without their consent
or the parent’s or guardian’s consent or advocate, promote, or
otherwise encourage violence against any governments,
organisations, groups, or individuals or activities that lead to cruelty
towards animals;
(b) conduct activities such as gambling, sweepstakes, raffles, and
lotteries or participate in any activities related to so-called pyramid or
Ponzi schemes or any other illegal, immoral, or antisocial activities
through the SofaX Platform;
(c) input or upload on the SofaX Platform any material that is not directly
connected with the Products and/or Services or permit the use of the
Stakeholders account or offer free space or other access to the
account to third parties;
(d) access content and information that concerns any party other than
the Stakeholder, transmit unsolicited commercial or bulk email,
interfere with the proper working of the SofaX Platform, transmit any
viruses, Trojan horses or other harmful code, or attempt to bypass any
mechanism used to detect or prevent such activities;
(e) enrol or offer to enrol Customers in any scheme or program other
than as strictly required for warranty purposes;
(f) open multiple shops on the SofaX Platform without SofaX’s prior
approval;
(g) duplicate stock-keeping units on the SofaX Platform;
(h) create liability for SofaX (and its Affiliates, directors, employees,
contractors, agents, subcontractors, etc.) or expose it to undue risk or
engage in activities that SofaX, in its sole discretion, determines to be
harmful to SofaX’s operations, reputation or goodwill;
(i) infringe any Intellectual Property Rights; or
(j) violates any Laws.
4.4. Undertaking in relation to the Products and/or Services: The Stakeholder
undertakes, represents and warrants that:
(a) the Products and/or Services are of merchantable quality, fit for their
purpose, free from defects, and strictly conform to their listed
specifications;
(b) the Products and/or Services and their offer for sale are not prohibited
and are in compliance with the Laws, including all minimum age,
marking and labelling requirements, product warranties,
specifications and performance criteria;
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(c) it has full, unencumbered title to the Products and any materials
incorporated in the Products and all the Products are supplied free of
liens, charges, or other security interests;
(d) it will provide the Products and/or Services with all legally required
documentation, including warranty cards, warranty information, and
invoices, and update the same when legally required; and
(e) it will not, directly or indirectly, sell counterfeit, "replica", and name-
brand "knock-off" products or products violating any Intellectual
Property Rights.
5. PERMITTED PRODUCTS AND SERVICES
5.1. The Stakeholder shall only offer for sale Products and/or Services that are
relevant to the SofaX Platform and legally permitted. The Stakeholder is
solely responsible for all matters related to the Products and/or Services,
including but not limited to merchantability, fitness for purpose,
satisfactory quality, refunds, exchanges, and all other warranties thereof.
6. USE OF TOOLS
6.1. The Stakeholder’s use of the SofaX Services and SofaX Platform, including
the selection of its username and store name, must not be unlawful,
inaccurate, misleading, false, fraudulent, defamatory, trade libellous, or
otherwise unsuitable or inappropriate. Any login credentials and account
identification issued by SofaX to the Stakeholder may be used only during
the period that the Stakeholder is permitted to use the SofaX Platform, and
for the purpose of managing the Stakeholder’s catalogue of Products
and/or Services listed on the SofaX Platform, including but not limited to
updating information about the Products and/or Services (e.g. prices). The
Stakeholder may not share the login credentials and account identification
with any person other than employees of the Stakeholder. The Stakeholder
is solely responsible for accessing and using its account on the SofaX
Platform.
6.2. The availability of the SofaX Services and SofaX Platform is subject to:
(a) the availability of resources, including but not limited to resources
under the control of SofaX and the availability of a suitable network
infrastructure at the time the relevant service is requested or
delivered;
(b) where applicable, the geographic and technical capability of
communication networks and other delivery systems at the time the
relevant services are requested or delivered;
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(c) provisioning time that may be required by SofaX to provide the
relevant services; and
(d) the Stakeholder satisfying the technical requirements for using the
SofaX Platform from time to time.
6.3. The Stakeholder shall not engage, directly or indirectly, in any fraudulent,
inappropriate or unlawful activities in connection with the SofaX Services
or SofaX Platform, including but not limited to:
(a) generating fraudulent, repetitive or otherwise invalid clicks,
impressions, queries or other interactions, whether through the use
of automated applications or otherwise;
(b) collecting any user information, indexing or caching any portion of
the SofaX Platform, whether through the use of automated
applications or otherwise;
(c) targeting communications of any kind on the basis of the intended
recipient being a user of the SofaX Platform;
(d) interfering with the proper working of the SofaX Platform, SofaX
Services, or SofaX's other systems;
(e) transmitting any viruses, Trojan horses or other harmful code; or
(f) attempting to bypass any mechanism SofaX uses to detect or prevent
such activities.
7. CONTENT MATERIALS & INTELLECTUAL PROPERTY RIGHTS
7.1. The Stakeholder represents and warrants that:
(a) it has lawful rights with respect to the use of all Intellectual Property
Rights provided by the Stakeholder to SofaX under this Agreement;
(b) all information and Content Materials provided by the Stakeholder
under this Agreement, including in relation to the listing of the
Products and/or Services, are accurate, current, complete, and not
misleading or otherwise deceptive;
(c) all Content Materials and Intellectual Property Rights provided by the
Stakeholder under this Agreement do not violate any third party’s
Intellectual Property Rights and satisfy all legal requirements; and
(d) the Stakeholder is not aware of any claims made by any third party
with regard to any alleged or actual Intellectual Property Right
infringement or other claim, demand, or action in relation to the
Content Material provided by the Stakeholder or the advertising,
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publishing, promotion, manufacture, sale, distribution or use of the
Products and/or Services.
7.2. The Stakeholder grants SofaX a royalty-free, non-exclusive, worldwide,
unconditional, transferrable, perpetual and irrevocable right and license to
use, reproduce, perform, display, store, publish, distribute, adapt, modify,
reformat, create derivative works of, and otherwise commercially and non-
commercially exploit in any manner, any and all of the Content Materials
and any other content and materials provided by the Stakeholder and to
sublicense the foregoing rights to SofaX’s Affiliates, provided that SofaX will
not alter any third-party trademarks.
7.3. All 3D models rendered by SofaX, including but not limited to Virtual
Models and all the Intellectual Property Rights thereof, using the Content
Materials and any other content and materials provided by the Stakeholder
or otherwise, are owned by SofaX. The Virtual Models are and shall remain
the sole and exclusive property of SofaX.
7.4. All customised 3D models displayed on the SofaX Platform, including but
not limited to Customised Virtual Models and all the Intellectual Property
Rights thereof, are owned by SofaX. Without limiting the foregoing, the
Stakeholder hereby assigns to SofaX all of its rights, title, and interest in and
to all Customized Virtual Models. The Customized Virtual Models are and
shall remain the sole and exclusive property of SofaX. If for any reason the
Stakeholder is prevented or restricted from assigning any rights in the
Customized Virtual Models to SofaX, the Stakeholder grants SofaX an
exclusive, perpetual, worldwide, unconditional, royalty-free, irrevocable
license enabling SofaX to fully utilise the Customized Virtual Models and
any component thereof, for any purpose and in any manner whatsoever.
7.5. All Intellectual Property Rights in and to any work or material in any form
or medium as may be created, authored, developed or otherwise produced
by SofaX using the Content Materials or any other content and materials
provided by the Stakeholder under this Agreement shall be vested solely
and entirely in SofaX. For the avoidance of doubt, the Stakeholder shall
provide any such assistance as may be required by SofaX or its Affiliates to
substantiate and perfect SofaX’s or SofaX’s Affiliates’ ownership, right,
interest, and title to the said Intellectual Property Rights.
7.6. SofaX has no obligation to verify the accuracy, completeness, and legality
of the Content Materials or any other content and materials provided by
the Stakeholder.
7.7. SofaX retains the right to determine the use, placement, structure,
appearance, design, functionality, and all other aspects of the Content
Materials and all other content and materials provided by the Stakeholder
on the SofaX Platform.
7.8. All Intellectual Property Rights related to the SofaX Services and SofaX
Platform are owned by SofaX. This Agreement does not grant the
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Stakeholder any Intellectual Property Rights in any tangible or intangible
property, such as software (e.g. the SofaX Platform, the Virtual Models, the
Customized Virtual Models, and any application programming interfaces)
and data (e.g. Personal Data and data related to sales, performance,
Customer, and SofaX Platform) used, obtained, or created under this
Agreement, unless stated otherwise. If the Stakeholder accrues any such
rights for any reason, the Stakeholder must assign, dispose or transfer (and
effect the transfer of) the full and exclusive ownership of all such rights to
SofaX or any other party designated by SofaX, free of charge, or for a
nominal fee. The Stakeholder can use or process any such Intellectual
Property Rights only for the purpose of the executing the Agreement,
cannot claim any Intellectual Property Rights, sell, assign, license,
distribute, publish, lease or otherwise commercially exploit such software
and data, and must immediately cease such use or processing upon the
termination of the Agreement or as required by SofaX at any time.
7.9. Neither Party will attempt to register any distinctive trademarks or domain
names that are confusingly similar to those of the other Party.
7.10. The Stakeholder cannot directly or indirectly participate in any actions
involving the reverse engineering, reverse compiling, decompiling or
otherwise deriving the underlying source code or structure or sequence of
any SofaX solution or technologies, or deleting or altering author attributes
or copyright notices.
8. CONFIDENTIAL INFORMATION
8.1. Both Parties are obligated to maintain the confidentiality of all Confidential
Information. The Parties shall not disclose any Confidential Information to
any third party without obtaining the written consent of the other Party,
except to its Affiliates, employees, and/or agents who have agreed in
writing to keep the Confidential Information confidential and on a need-
to-know basis. Any disclosure of Confidential Information by the employees
or agencies hired by either Party shall be deemed disclosure by that Party
and will be held liable for a breach of this Agreement.
8.2. The Recipient may disclose Confidential Information if required by law
provided that reasonable notice and the opportunity to seek confidential
treatment, a protective order or similar remedies or relief prior to disclosure
have been given to the Discloser.
8.3. Except for any copy required to be kept by the Recipient for legal or
regulatory reasons, the Recipient shall, at any time upon request from the
Discloser or upon the end of any relationship between the parties, at the
Discloser's option, either return to the Discloser or destroy all Confidential
Information in its possession or control together with all information and
documentation containing, comprising or relating in any way to the
Confidential Information, and certify that all copies of the Confidential
Information have been so returned or destroyed, as the case may be.
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8.4. This Section shall survive the termination of this Agreement.
9. PERSONAL DATA
9.1. The Stakeholder shall use and process Personal Data:
(a) solely for the purpose of this Agreement and not disclose it to third
parties;
(b) in accordance with the applicable personal data protection Laws; and
(c) in such manner that ensures SofaX remains in compliance with the
applicable personal data protection Laws.
9.2. The Stakeholder represents, warrants, and covenants that it will not:
(a) enhance a file or list in connection with Personal Data, particularly
involving personally identifiable information of Customers, owned by
the Stakeholder, or any third party; and
(b) resell, broker, or disclose any Personal Data, particularly involving
personally identifiable information of Customers, to any third party, in
whole or in part, for any purpose, unless required by applicable law or
competent authorities.
9.3. The Stakeholder shall implement sufficient security measures to ensure
that the Personal Data is securely kept and maintained as required by the
applicable personal data protection Laws. The Stakeholder shall also
subject itself to the necessary audits undertaken by SofaX to ensure
compliance with this obligation. The Stakeholder shall immediately inform
SofaX of any Personal Data incident that it becomes aware of.
9.4. This Section shall survive the termination of this Agreement.
10. TERMINATION
10.1. Either Party may unilaterally terminate this Agreement without cause by
providing three (3) months’ prior written notice to the other Party.
10.2. SofaX has the right to unilaterally and immediately terminate this
Agreement by providing the Stakeholder with a written notice upon the
occurrence of any of the following:
(a) repeated bad reviews or complaints in relation to the Stakeholder’s
quality or standard of Services or Products;
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(b) the Stakeholder being in breach of any provision of the Agreement
and failing to remedy the same within fourteen (14) days from being
notified;
(c) the Stakeholder being in breach of any applicable Laws relating to its
obligations or responsibilities under this Agreement; or
(d) commission or investigation of any unlawful, illegal and/or fraudulent
act by the Stakeholder; or
(e) non-payment by the Stakeholder for SofaX Services.
10.3. Either Party may, upon giving written notice to the other Party,
immediately terminate this Agreement if the other Party:
(a) terminates or suspends its business;
(b) enters into bankruptcy or insolvency proceedings or other analogous
proceedings; or
(c) becomes subject to any Laws or restrictions that prevent the other
Party from performing its obligations under this Agreement.
10.4. The termination of this Agreement shall not relieve or limit the Parties from
their obligations, responsibilities and liabilities accruing prior to such
termination.
11. REPRESENTATIONS AND WARRANTIES
11.1. The SofaX Services and SofaX Platform are provided on an "as is" basis.
Unless otherwise stated, SofaX makes no representations or warranties of
any kind, express or implied, including but not limited to:
(a) the implied warranties of merchantability, fitness for a particular
purpose, title, and non-infringement;
(b) that the SofaX Services or SofaX Platform will meet the Stakeholder's
requirements or always be available, accessible, uninterrupted, timely,
secure, or operate without error;
(c) that the information, content, materials, or products included on the
SofaX Platform will be as represented by SofaX, or that SofaX or the
Customers will perform as promised;
(d) any implied warranties arising from course of dealing or usage of
trade; and
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(e) any obligation, liability, right, claim, or remedy in tort, unless arising
from acts of fraud, negligence, or wilful misconduct by SofaX.
11.2. The Stakeholder undertakes and warrants that all its representations,
warranties, and undertakings in the Agreement shall be fulfilled, remain
true and correct at all times, and subsist for as long as necessary to give
effect to each and every one of them in accordance with this Agreement.
In the event of any of them becoming unfulfilled, untrue, or incorrect, the
Stakeholder shall promptly inform SofaX of the same and rectify the
situation.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1. Any information or materials provided by SofaX through or in connection
with the SofaX Platform and SofaX Services may contain inaccuracies,
errors or omissions. SofaX reserves the right to correct such inaccuracies,
errors or omissions to the fullest extent permitted by the Laws, and
excludes liability relating thereto.
12.2. The Stakeholder shall indemnify, hold harmless and, at SofaX’s option,
defend SofaX and each of its respective Affiliates, officers, employees,
directors and agents from and against any and all liens, damages, losses,
liabilities, obligations, penalties, fines, claims, litigation, demands, defences,
judgements, suits, proceedings, costs, disbursements or expenses of any
kind or nature whatsoever, including but not limited to third party claims,
reasonable attorney’s fees, consultants’ fees, experts' fees and other
litigation costs, arising from or related to:
(a) the SofaX Platform and SofaX Services, including but not limited to
the hosting, operation, management and administration thereof;
(b) the transactions between the Stakeholder and Customers;
(c) any actual or alleged breach of the Stakeholder's undertakings,
representations, warranties or obligations under this Agreement;
(d) any incorrect, misleading or erroneous information provided to SofaX
or any third party relating to or in connection with the SofaX Platform
or SofaX Services;
(e) any non-compliance by the Stakeholder with any applicable Laws,
including losses incurred by SofaX or its sub-contractors regarding
carriage or prohibited Products and/or Services;
(f) any actual or alleged infringement of any Intellectual Property Rights,
particularly arising from those provided by the Stakeholder;
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(g) the collection, payment or failure to collect or pay taxes by the
Stakeholder;
(h) any security or personal data incidents that the Stakeholder is directly
or indirectly responsible for;
(i) any violation of the Agreement by the Stakeholder;
(j) the negligence, gross negligence, bad faith or intentional or wilful
misconduct of Stakeholder or its subcontractors (whether or not
approved by Stakeholder);
(k) any other matters that may be attributable to the Stakeholder,
including but not limited to those related to the Stakeholder’s
Products and/or Services and the Content Materials thereof; or
(l) any other matters beyond SofaX’s control.
12.3. If SofaX reasonably determines that any indemnified claim may adversely
affect SofaX, SofaX may take control of the defences at the expense of the
Stakeholder. The Stakeholder shall not consent to the entry of any
judgment or enter into any settlement of a claim against SofaX without the
prior written consent of SofaX.
12.4. Notwithstanding any terms and conditions herein, we shall not be liable for
any loss of profit, goodwill, business opportunity, anticipated savings or for
any indirect or consequential loss or damage that may be suffered by you,
whether caused by us or otherwise.
12.5. To the fullest extent permitted by the Laws, and notwithstanding any other
provision of this Agreement, the total liability, in the aggregate, of SofaX
and its Affiliates and their respective officers, directors, partners, employees
and contractors, to the Stakeholder and anyone claiming by or through the
Stakeholder, for any and all liens, damages, losses, liabilities, obligations,
penalties, fines, fees, claims, litigation, demands, defences, judgements,
suits, proceedings, costs, disbursements or expenses of any kind or any
nature whatsoever, including attorneys’ fees and costs and expert-witness
fees, resulting from or in any way related to the Agreement from any cause
or causes will not exceed the amount that SofaX is entitled to receive from
the Stakeholder for the month preceding the date the liability arose.
13. ELECTRONIC COMMUNICATIONS
13.1. The communications between Parties will be conducted using electronic
means. For contractual purposes, the Stakeholder:
(a) consents to receive communications from us in electronic form; and
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(b) agrees that all terms and conditions, agreements, notices, disclosures,
and other communications that we provide to you electronically will
satisfy any legal requirements that such communications would
satisfy if they were in hardcopy writing.
14. ASSIGNMENT
14.1. The Stakeholder cannot assign, transfer or subcontract all or part of its
rights and/or obligations deriving from the Agreement, without the prior
written consent of SofaX. SofaX may assign, transfer or subcontract all or
part of its rights and/or obligations deriving from the Agreement.
15. FORCE MAJEURE
15.1. No Party will be liable to the other or be deemed to be in breach of the
Agreement by reason of any delay or failure to perform any of its
obligations due to an event of Force Majeure. Upon the occurrence of any
event of Force Majeure, SofaX may, at its option, fully or partially suspend
delivery or performance of its obligations hereunder while such event or
circumstance continues.
16. WAIVER
16.1. The failure of a Party to exercise its rights in case of breach of contract by
the other Party will not be considered a waiver of its rights under the
Agreement or under the Laws.
17. SEVERABILITY
17.1. If any term, condition, or provision of this Agreement is held to be invalid,
unlawful, or unenforceable to any extent, the invalid term, condition, or
provision will be severed from the remaining terms, conditions, and
provisions of this Agreement, which will continue to be valid and
enforceable to the fullest extent permitted by law. The tribunal will
preserve, as far as possible, the original intention of the Parties with respect
to the severed term, condition, or provision.
18. SURVIVAL
18.1. Following the term of this Agreement, any and all provisions set forth
herein which, by their very nature, are intended to survive any expiration or
termination hereof, shall survive, including but not limited to the provisions
respecting confidentiality, representations & warranties, indemnifications,
limitations on liability, ownership, and accrued payment obligations.
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19. RELATIONSHIP OF PARTIES
19.1. The Stakeholder and SofaX are independent contractors, and nothing in
the Agreement will create any partnership, joint venture, agency, franchise,
sales representative relationship or exclusivity between the Parties. The
Agreement will not cause the establishment of any employment
relationship between the Parties or with any person who provides services
to either. The Stakeholder will have no authority to make or accept any
offers or representations on behalf of SofaX.
20. THIRD PARTY RIGHTS
20.1. The Agreement and all the representations, warranties, covenants,
conditions, and provisions hereof are intended to be and are for the sole
and exclusive benefit of SofaX and the Stakeholder. Other than as regards
the rights of Customers against the Stakeholder, nothing in the
Agreement, express or implied, will be construed as conferring upon any
other person or entity any legal or equitable right, benefit, or remedy of any
nature.
21. GOVERNING LAW AND DISPUTE RESOLUTION
21.1. This Agreement shall be governed by and construed in accordance with
the Laws, without regard to the principles of conflict of laws. Any dispute,
controversy or claim arising out of or relating to this Agreement shall be
referred to and finally resolved by arbitration administered by the Asian
International Arbitration Centre located in Kuala Lumpur, Malaysia, in
accordance with the Arbitration Rules of the Asian International Arbitration
Centre for the time being in force, which rules are deemed to be
incorporated by reference in this Section. The seat of arbitration shall be
Kuala Lumpur, Malaysia. The Tribunal shall consist of one arbitrator. The
language of the arbitration shall be English.
22. ENTIRE AGREEMENT
22.1. This Agreement represents the entire agreement and understanding
between the Parties regarding the subject matter. If any provision of this
Agreement is deemed void or invalid, that fact shall not affect any other
provision, and the remainder of the Agreement shall be deemed modified
to the extent necessary to make it valid and enforceable, in accordance
with the Laws. Failure by either Party to enforce any provision of this
Agreement shall not be construed as a waiver of the right to enforce that
or any other provision in the future. The Agreement shall apply to the
relationship between the Parties in addition to any specific terms agreed
upon herein.