TERMS OF SERVICE
By signing on the Customer Registration Form or by using or continuing to use the Services defined below, you agree that the Services shall be governed by the terms and conditions appearing hereunder and you further agree to be bound by the same. Omnimatics reserves the right, in its sole discretion, to change, modify, amend, add, replace or remove any part of the Terms of Service at any time ("Changes"). Your continued use of the Services or payment of the Fees following the posting of Changes in the Platform shall be deemed as your acceptance of the same.
- DEFINITION & INTERPRETATION
- In addition to the words already defined in this Agreement and unless the context requires otherwise, the following expressions shall have the following meanings:
- In addition to the words and expressions already
defined hereunder, the following words and
expression shall have the following meaning:
- "Agreement" means and comprises of (i) the Terms of Service; (ii) the Customer Registration Form; (iii) Schedule of Services; (iv) Schedule of Fees; (v) any other document(s) referred to or made between the Parties in connection hereto and where in the event of any inconsistencies, the order of priority shall be as follows: (i) the Terms of Service; (ii) the Customer Registration Form; (iii) Schedule of Services; (iv) Schedule of Fees; (v) any other document(s) referred to or made between the Parties in connection hereto;
- "Business Day" means any day (excluding Saturdays, Sundays and public holidays) on which Omnimatics is open for business in Kuala Lumpur;
- "Customer" or "You" means the person described in Section 1 of the Customer Registration Form;
- "Data" means any data and information in relation to the Customer’s vehicle generated by the Hardware installed into the Customer’s vehicle and conveyed to the Customer via the Platform;
- "Effective Date" means the effective date as stipulated in Section 3 of the Customer Registration Form;
- "Fees" means the fees payable by the Customer for the Services as stipulated in the Schedule of Fees;
- "Hardware" means the dongle and such other equipment and/or device as may be necessary and required (as determined and supplied by Omnimatics) to be installed into the Customer’s vehicle in order to enable Omnimatics to provide the Services;
- "Services" means the services described in the Schedule of Services;
- "Omnimatics" means Omnimatics Sdn Bhd;
- "Party" means either the Customer or Omnimatics as the case may be;
- "Parties" mean both the Customer and Omnimatics; and
- "Platform" means the website at www.cardiagnostics.io and any subdomain thereof and its related mobile applications (if any), related databases and supporting software operated by Omnimatics to which the Customer is granted access to by Omnimatics;
- "Services" means the services described in the Schedule of Services;
- "Supporting Documents" means the supporting documents specified in Section 3 of the Registration;
- "Term" means the terms specified in Section 3 of the Customer Registration Form.
- "Vehicles" means all the vehicles identified, selected and provided by the Customer for the purposes of Hardware installation and the implementation of the Services.
- THE SERVICES
- Appointment - The Customer hereby appoints Omnimatics and Omnimatics hereby agrees to perform the Services and supply the Hardware subject to the terms and conditions as stipulated herein.
- Verification - Omnimatics reserves the right to verify the Supporting Documents received pursuant hereto in any manner it deems fit.
- Effective Date - The Effective Date of this Agreement shall be as specified in Section 3 of the Customer Registration Form.
- Scope and Type of Services - The type and scope of the Services which Omnimatics shall provide to the Customer shall be as set out in the Schedule of Services.
- Vehicles - The Customer expressly warrants to Omnimatics that the Customer is duly authorised to provide or make the Vehicles available for the purposes of Hardware installation and the implementation of the Services and shall fully indemnify Omnimatics for any losses which Omnimatics may incur as a result of the installation of the Hardware or the implementation of the Services on the Vehicles. All vehicles on which the Hardware shall be installed by Omnimatics or its authorised representatives shall be made available and delivered to the premises designated by Omnimatics within the time frame stipulated in Section 3 of the Customer Registration Form or such other time frame as may be agreed between the Parties, whichever being the later the Customer’s cost.
- Activation of Services - The Customer agrees and
acknowledges as follows:
- The activation of the Services (including access and use of the Platform) requires the proper installation and configuration of the Hardware;
- The Customer agrees to purchase, rent or otherwise acquire the Hardware from Omnimatics or its authorised representatives only and use the same for the purposes of the Services in accordance with the terms and conditions of this Agreement.
- The Services and the Customer’s access and use of the Platform shall be dependent on the Customer’s continued observation of the terms and conditions of this Agreement.
- Hardware - The Hardware supplied to the Customer under this Agreement shall be in tamper proof pre-configured and/or un-configured form. The Customer agrees and acknowledges that Hardware is not produced or manufactured by Omnimatics and the Hardware’s warranty against defect (if any) shall be as provided by the Hardware’s manufacture or supplier. All claims and complaints concerning any defect in the Hardware shall be handled by and directed to the Hardware’s manufacture or supplier. The Customer may at its own cost forward its Hardware defect claim or complaint directly to the manufacturer or supplier of the Hardware or to Omnimatics for its onward transmission to the said manufacturer or supplier. The Customer agrees not to hold Omnimatics liable for any losses that the Customer may suffer as a result of any defect in the Hardware.
- Use of Hardware - The Customer undertakes not to tamper or otherwise modify or adjust the Hardware or any part thereof (including the Hardware’s configuration) without the prior authorisation of Omnimatics. The Customer further agrees not to directly or indirectly use or allow to be used in any Vehicle for the purposes of the Services any third party Hardware or components. Omnimatics shall not be responsible to the Customer for any losses which the Customer may incur as a result of any Hardware tampering, use of any third party Hardware or components or any unauthorised Hardware modification or adjustment.
- Hardware Installation - The Hardware supplied in this Agreement can be self-installed by the Customer or installed by Omnimatics or its authorised representatives.
- Plug and Play Hardware - Where plug and play or self-install Hardware is provided to the Customer in accordance with the terms of this Agreement and the installation thereof is carried out by persons other than Omnimatics or its authorised representatives, the Customer shall cause and ensure that such Hardware is duly installed in accordance with the given installation instructions. The Customer may request for the installation of such Hardware to be carried out by Omnimatics or its authorised representatives with the payment of the prescribed installation fee.
- Hardware Re-installation or Re-configuration - Omnimatics reserves the right to impose charges on the Customer for any re-installation or re-configuration of any Hardware if such re installation or reconfiguration is required due to no fault of Omnimatics or its authorised representatives.
- Unauthorised Hardware Installation - The Customer acknowledges and agree that any incorrect, unauthorised or inappropriate Hardware installation or use may negatively affect Services or its outcome. The Customer further agrees that Omnimatics shall not be liable to the Customer for any losses which the Customer may incur as a result thereof of any incorrect, unauthorised or inappropriate Hardware installation or use unless such losses are solely caused by Omnimatics or its authorised representatives. Omnimatics shall also not be responsible to the Customer for any losses incurred if such losses is due to any unauthorised or inappropriate Hardware installation or use.
- Purchased Hardware - Support and maintenance of all Hardware that have been purchased by the Customer shall be made available by Omnimatics or its authorised representatives upon payment of the prescribed fee.
- Rental Hardware - Where the Hardware is provided by Omnimatics to the Customer on a rental basis, the Customer shall at all times handle the Hardware appropriately and with due care. The Customer shall not directly or indirectly do or allow to be done anything that may result in the Rental Hardware or any part thereof being destroyed, stolen, lost, vandalised, tampered or misplaced. The Customer shall be fully responsible for and liable to Omnimatics for all losses which Omnimatics may suffer as a result of the above. For avoidance of doubt the ownership of the Rental Hardware shall at all times vest with Omnimatics. Maintenance and rectification works (if any) of the rental Hardware due to authorised use shall be carried out by Omnimatics or its authorised representatives at no cost to the Customer. Cost for the implementation of any maintenance and rectification works of the rental Hardware by Omnimatics or its authorised representatives due to unauthorised or improper use or any event beyond the control of the Customer shall be borne by the Customer.
- The term of this Agreement shall be as set out in Section 3 of the Customer Registration Form. This Agreement may upon its expiry be extended for such period and on such terms and conditions as may be mutually agreed between the Parties.
- The Fees and security deposits (if any) payable for the Services and the Hardware together with the access and use of the Platform shall be as set out in the Schedule of Fees. For avoidance of doubt, the Fees shall be payable in the manner as stipulated in this Agreement regardless whether the Services is activated or not.
- Omnimatics reserves the right to suspend the supply of the Hardware or the Services and restricting or prohibiting the Customer’s access or use of the Platform without any form of liability to the Customer if any undisputed amount of the Fee remains outstanding for a period exceeding thirty (30) days from the date of Omnimatic’s invoice.
- Save where it is provided to the contrary in the Schedule of Fees, Omnimatics shall be entitled to issue its invoice to the Customer upon activation of the Services or upon the expiry of 30 days from the Effective Date specified in Section 3 of this Agreement, whichever being the earlier.
- In consideration of the Customer’s payment of the Fee in the manner as stipulated in this Agreement, Omnimatics grants to the Customer on a best effort basis a non-exclusive, non-transferable and revocable license to use the Platform and the Services subscribed during the Term and any extension thereof solely for the Customer’s own use. The Customer agrees that its subscription for the Services is not contingent on the delivery of any future functionality or features, or reliance on any oral or written public comments made by Omnimatics regarding future functionality or features.
- The Customer agrees and undertakes to subscribe for data connection plan provided by or through Omnimatics only for the provision of the Services.
- In the event the Services shall be suspended due to no fault of Omnimatics and the Customer subsequently applies for reconnection of the Services within two (2) months from the date of such suspension or termination, Omnimatics shall be entitled to impose a reconnection fee on the Customer. Reconnection shall not be applicable after the expiry of two (2) months from the date of suspension.
- In addition to such other duties and obligations as
are set forth herein and provided the Customer is
in compliance with the terms and conditions of
this Agreement, Omnimatics shall use
commercially reasonable efforts:
- to provide to the Customer the username and password, and other security processes and equipment and/or devices ("Log-in Credentials") in order for the Customer to access the Platform, and to start using the Services which the Customer subscribes to on or before the Effective Date;
- to ensure prompt timelines, troubleshooting, explanations, clarification, or work-around on all issues reported to firstname.lastname@example.org within one (1) Business Day upon its receipt of such report(s);
- to give at least forty-eight (48) hours prior written notice to the Customer of any maintenance works or error clearance in relation to the Services and/or Platform ("Maintenance Period"). Omnimatics shall make every effort to minimise any disruption of the Services’ and/or Platform’s availability to the Customer. Notwithstanding the foregoing, the Customer acknowledges that the Services and the Platform shall be subject to sixty (60) minutes daily post-midnight maintenance downtime. During the Maintenance Period, the Services may not be available to the Customer and in such circumstance, Omnimatics shall not be liable or responsible in any manner or way whatsoever for any losses that the Customer may suffer or have suffered as a result of such disruption during the Maintenance Period;
- to ensure the provision of the Services to the Customer are carried out and performed with due care and skill;
- to provide the Customer with technical and advisory assistance with respect to utilisation and operation of the Services and/or Platform; and
- to keep and store the Data securely and make it available within the active database for one (1) year from the date the Data has been transferred to the Platform.
- While every reasonable effort shall be utilised by Omnimatics to ensure that the Platform remains free from viruses, malware, Trojans and other programs of the like nature, access and use of the Platform shall at all times be at the risk of the Customer and Omnimatics shall not be responsible to the Customer for any losses that the Customer may suffer as result hereof.
- The Customer agrees and undertakes not to or allow to be done anything that may cause the Platform or any part thereof to crash or experience any glitches.
- CUSTOMER’S CONSENT
- The Customer consents that Omnimatics:
- may process and use data such as performance information of vehicle, driving distances and driving patterns (in particular for product research and development, accident research investigations, surveillance and proactive maintenance and such other purposes set out herein) and Omnimatics may use such data in any manner in order to provide and improve on its services and support; and
- may use the Customer’s personal data for training purposes and for the marketing of its products and services.
- The Customer acknowledges that it is obtaining only a limited right to the Services and no ownership rights of any nature whatsoever are being conveyed to the Customer herein. The Customer agrees that Omnimatics retains all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Services and the Platform, and any and all underlying software (including interfaces), databases (including data models, structures, non-Customer specific data and aggregated statistical data contained therein), technology, reports and documentation. Further, the Customer acknowledges that the Services are offered as a hosted solution, and that it has no right to obtain copies of any data or information related to the Services.
- The Customer consents that Omnimatics:
- REPRESENTATIONS, WARRANTIES, LIMITATIONS AND DISCLAIMER
- In addition to the other warranties and
representations provided by the Customer herein,
the Customer further agrees, undertakes,
represents and warrants as follows:
- the Customer has the power, capacity and authority to enter into this Agreement;
- there is no action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official (whether pending or threatened) that is likely to affect the Customer’s ability to perform his obligations hereunder;
- the Customer shall be personally responsible for the security, use and access of the Services using the Customer’s IP address or account and shall safeguard all its Log-in Credentials and shall not disclose the same to any third party;
- the Customer shall use and access the Services and/or the Platform at the Customer’s own risk, in accordance with the terms and conditions herein and applicable laws and regulations;
- the Customer shall not directly or indirectly use and/or access the Services and/or the Platform for any illegal or unlawful purposes or purposes which are not condoned or deemed inappropriate by Omnimatics;
- the Customer shall prevent any unauthorised access to or use of the Services, the Hardware and/or the Platform by any third party and shall notify Omnimatics within one (1) Business Day upon its knowledge of any such unauthorised access or use of the Services, the Hardware and/or the Platform by any third party;
- the Customer shall not adapt, modify, copy, translate, distribute, transmit, display, perform, reproduce, publish, license, transfer, download, post, create derivative works from, framing and using, any Data and content from the Platform;
- the Customer shall not access, hack into, interfere with, disrupt, disable, over-burden or otherwise impair the proper functioning of the Platform and/or attempt to discover the source code of the Platform, including but not limited to denial-of-service attacks, spoof attacks, session hacking, sniffing, tampering, reverse engineering or reprogramming;
- the Customer shall be responsible for obtaining and using the necessary software and/or equipment to obtain access to the Platform at the Customer’s own risk and expense, and shall be responsible for the performance and security (including without limitation taking all necessary measures to the extent reasonable possible to prevent unauthorised use or access) of any software and/or equipment; and
- the Customer shall assume the entire cost of all necessary servicing, repair or correction of any defect, problem or damage in its computer or device or vehicle, and Omnimatics shall not be liable for the loss of any of the content in the Customer’s computer or device or vehicle, or for the deletion or failure to store any content maintained or posted by or through the Platform.
- Omnimatics provides the Services, Platform and all
included contents on an “as is” basis without
warranty of any kind, whether express or implied,
and makes no representation as to the quality,
completeness or accuracy of any content made
available. Omnimatics further:
- does not give warranty, whether express or implied, in relation to any activities and/or outcome and/or transactions from the Services and/or the Platform and that the Customer’s request can or will be fulfilled;
- does not give warranty, whether express or implied, as to the functionality, operability, accessibility, accuracy, correctness, reliability, up-to-date-ness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights, of the Services and/or the Platform;
- does not warrant, whether express or implied, that the use and access to the Platform will be uninterrupted, error free or free of computer viruses or computer bugs or other harmful or corrupting code, or that the defects will be corrected, or that the download, installation or use of any software or content of the Platform in or with any computer or device will not affect the functionality or performance of the computer or device;
- does not warrant, whether express or implied, that the Platform will be fully protected against any virus, Trojans, malware or any malicious attack and that the Data will not be corrupted or compromised under such attack.
- In addition to the other warranties and representations provided by the Customer herein, the Customer further agrees, undertakes, represents and warrants as follows:
- The Customer shall be liable to Omnimatics for any losses incurred by Omnimatics as a result any default of this Agreement on the part of the Customer. In addition thereto, the Customer shall also indemnify and hold harmless Omnimatics, its licensors, affiliates, officers, directors, employees, or agents from and against all claims, causes of action, costs, damages, losses, liabilities, fines, demands and expenses (including legal costs on solicitors-clients basis, costs of defense of claims, suits or proceedings brought by third parties) arising out of or in connection with :- (i) a breach of any provisions herein by the Customer, its affiliates, officers, directors, employees or agents; or (ii) any action or omission of the Customer; or (iii) any fraud or misconduct on the part of the Customer, its affiliates, officers, directors, employees or agents.
- LIMITATION OF LIABILITY
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOR ALL CLAIMS IN ANYWAY ARISING FROM OR IN CONNECTION WITH THE SERVICES PROVIDED HEREIN, WHETHER IN CONTRACT, TORT, OR OTHER LIABILITY, IS LIMITED AS FOLLOWS: OMNIMATICS’ AGGREGATE LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT CORRESPONDING TO FEES ACTUALLY PAID BY CUSTOMER IN THE PRECEDING TWELVE (12) MONTHS PERIOD PRIOR TO THE OCCURRENCE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM FOR THE USE OF THE SERVICES WHICH CAUSED THE DAMAGES.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OMNIMATICS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION CLAIMS FOR ANY LOSS OF REVENUE, PROFITS, BUSINESS INTERRUPTION, ANTICIPATED SAVINGS OR BUSINESS, LOSS OF DATA OR GOODWILL, LOSS OF USE OR VALUE OF ANY VEHICLE AND/OR EQUIPMENT INCLUDING SOFTWARE RESULTING FROM :- (I) THE CUSTOMER’S ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; OR (II) UNAUTHORISED ACCESS OR MISUSE OF THE SERVICES AS DEFINED BY THESE TERMS OF SERVICES AND THE LAW AS DETERMINED IN OMNIMATICS’ SOLE AND ABSOLUTE DISCRETION. IN NO EVENT SHALL OMNIMATICS’ AGGREGATE LIABILITY EXCEED RINGGIT MALAYSIA THREE HUNDRED (RM300-00).
- INTELLECTUAL PROPERTY RIGHTS
- Omnimatics retains ownership in all intellectual property rights in the Services and the Platform together with all modifications, enhancements or other derivative works thereof. The rights of Services are licensed, not sold. The Customer shall preserve and treat them as Confidential Information.
- The Customer and Omnimatics shall retain joint ownership of all right, title and interest in the Data. The Customer shall prevent unauthorised use, interference with or access to the Data. Omnimatics shall not be liable to the Customer and/or any person in any manner whatsoever in the event of any incorrect, incomplete or inaccurate Data is transmitted to the Customer and/or any person as a result of or due to any unauthorised access, use or intervention of the Data by any person or as a result of any default on the part of the vehicle or the Hardware. For avoidance of doubt and notwithstanding anything stated or implied to the contrary herein, the Customer hereby grants to Omnimatics the irrevocable and perpetual right to use the Data for Omnimatics’ own purposes, including but not limited to research and development purposes, survey, analysis and evaluation purposes, accident research investigations, warranty and contract compliance surveillance, proactive maintenance and record-keeping purposes in the ordinary course of its business. In addition to the foregoing, Omnimatics may also use such Data: (i) in order to provide service, support, enhance and maintain the Services and develop new services; or (ii) for any other purpose that is required or permitted by any law, regulations, guidelines and/or relevant regulatory authorities.
- The Customer agrees that all code, inventions, know-how, business, technical, financial information and all other information relating or belonging to Omnimatics pursuant to the Services provided herein, irrespective of the form and/or nature of the information shall be deemed as confidential and constitute the property of Omnimatics ("Confidential Information"). Except as expressly authorised herein, the Customer shall hold in confidence and not use or disclose any Confidential Information to any third party unless with the prior written approval of Omnimatics. Confidential Information shall not include information which: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; or (ii) is in the public domain at the date hereof or which becomes public knowledge through no fault of the Customer; or (iii) is rightfully obtained by the Customer from a third party without breach of any confidentiality obligation owed to Omnimatics; or (iv) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation, law or order and with advance written notice to Omnimatics).
- Omnimatics may terminate this Agreement with immediate effect if the Customer fails to remedy any default on its part to the satisfaction of Omnimatics after being notified of such default by Omnimatics.
- Notwithstanding anything stated or implied to the contrary, Omnimatics may terminate this Agreement without cause and without any form of liability to the Customer at any time by way of notice in writing.
- All rights and interest that have accrued prior to the termination or expiry of this Agreement shall not be affected.
- All Fees paid by the Customer from the date of termination will be pro-rated and returned to the Customer free of interest within fourteen (14) Business Days of such termination whereupon this Agreement shall be deemed null and void and neither Party shall thereafter have any claim against each other save for any antecedent breach hereof.
- FORCE MAJEURE
- Omnimatics shall not be liable to the Customer and shall not be deemed to be in breach of any terms herein by reason of any delay in performing or failure to perform any of its obligations herein if the delay or failure was caused by an event of force majeure.
- Without prejudice to the generality of the
foregoing provision, force majeure shall
include but not limited to the followings:
- act of God, including but not limited to fires, explosions, earthquakes, drought, tidal waves and floods, or accident;
- war, threat of war, act of terrorism or threat of terrorism, sabotage, insurrection, civil disturbance
- or requisition;
- restrictions imposed by any law, regulations, by-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority;
- interruption of traffic, strikes, lock-outs, or other industrial actions or trade disputes (whether involving Omnimatics or third party);
- breakdown of internet services for any reason whatsoever;
- other unforeseeable circumstances beyond the control of Omnimatics which it would have been unreasonable for Omnimatics to take precautions and which Omnimatics cannot avoid even by using its best efforts.
- PERSONAL DATA
- GENERAL PROVISIONS
- These Terms of Services shall be governed by the laws of Malaysia and in the event of any dispute arising hereunder, such dispute shall be resolved by any court of competent jurisdiction in Malaysia.
- All notices, demands or other communications
required or permitted to be given or made
hereunder shall be in writing and delivered
personally or sent by prepaid registered post (by
air‑mail if to or from an address outside
Malaysia) with recorded delivery or ordinary post,
or by facsimile (followed by post) or email
transmission addressed to the intended
recipient thereof at its addresses or at its
facsimile number set out in the Customer
Registration Form (or to such other address or
facsimile number as a Party may from time to
time duly notify the other Party). Any such
notice, demand or communication shall be
deemed to have been duly served: -
- if it is delivered personally, at the time of delivery;
- in the case of (i) a prepaid registered post or an ordinary post, on third (3 rd ) Business Day after posting; or (ii) an air mail if to or from an address outside Malaysia, on the tenth (10 th ) Business Day after posting;
- in the case of an email transmission, on the Business Day immediately upon transmission of the email; and
- in the case of a facsimile when received in a readable and legible form, on the Business Day immediately upon transmission of the facsimile PROVIDED that the sender has received an answer back confirmation.
- If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that these Terms of Services shall otherwise remain in effect.
- This Agreement shall constitute the entire agreement between the Parties hereto with respect to the subject matter herein and shall supersede and cancel all previous written and oral agreements and communications relating to the subject matter herein.
- No waiver of any of the terms herein shall be binding unless made it is writing and signed by the Parties.
- The Customer shall not assign, novate, delegate or otherwise transfer any or all of its rights, duties, benefits or obligations under this Agreement to any third party without the prior written consent of Omnimatics.
- This Agreement shall be binding upon the Parties hereto and their successors-in-title and permitted assigns.
- The following shall survive the termination or expiry of this Agreement Clauses 5,6,7,8,9,10, 13,14 and 15 thereof”.