Severability. If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties. The validity and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
Assignment. Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer the Agreement or delegate any of its rights and/or obligations under the Agreement without the Supplier’s written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable. The Supplier, or its permitted successive assignees or transferees, may assign or transfer the Agreement or delegate any rights hereunder without consent: (1) to any entity controlled by, or under common control with the Supplier, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganisation, transfer, sale of assets or product lines, or change of control or ownership of the Supplier, or its permitted successive assignees or transferees.
No waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under the Agreement shall not be deemed a waiver of future enforcement of that or any other provision or right.
Resolution of disputes. Subject to the terms and conditions set forth in Section B6 below, in the event of a dispute, controversy or claim arising out of or in relation to the Agreement, including but not limited to the formation, validity, breach or termination thereof, the Parties shall attempt to solve the matter amicably in mutual negotiations. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either Party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth in Section B clause 6 below. Not withstanding the foregoing and subject to the terms and conditions set forth in Section B clause 6 below, either Party may seek injunctive relief with respect to any disputed matter to the extent possible under applicable law. However, should an amicable settlement between Parties not be possible, the dispute shall be finally solved in court or by arbitration as designated herein subject to the terms and conditions set forth in Section B6 below.
Governing law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of Malaysia and the Parties submit to the exclusive jurisdiction of the courts of Malaysia for the purposes of enforcing any claim arising hereunder.
Conclusion and term of Agreement
Terms of the Agreement
You retain all your ownership rights in your Client Data, whether posted and/or uploaded by you or made available on or through the Curlec Services by the Supplier. The Supplier does not guarantee any accuracy or confidentiality with respect to any information contained in any Client Data, and strongly recommend that you think carefully about what you transmit, submit or post to or through the Curlec Services. You understand that all information contained in Client Data is the sole responsibility of the person from whom such Client Data originated. This means that you, and not the Supplier, are entirely responsible for all Client Data that you upload, post, transmit, or otherwise make available through the Curlec Services, as well as for any actions taken by the Suppliers or other Clients or Users as a result of such Client Data.
The Supplier does not make any representations that it will publish or make any Client Data available on or through the Curlec Services, and reserves the right (but has no obligation), in its sole discretion, to refuse to allow any Client Data on the Platform, or to edit or remove any Client Data at any time with or without notice provided always that the Services shall comply with all applicable laws to this aspect.
You understand that when using the Platform, you may be exposed to other Client’s Client Data from a variety of sources and that the Supplier does not endorse, nor is responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Client Data. You understand that the Supplier cannot, and does not, review all Client Data and do not endorse any Client Data. You further understand and acknowledge that you may be exposed to other Client’s Client Data that is inaccurate, misleading, offensive, indecent, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against the Supplier with respect thereto.
The Supplier is not obliged, in its own initiative, to pre-screen, monitor or filter any Client Data or acts of its processing by the Client in order to discover any unlawful nature therein. However, if such unlawful Client Data or the action of its unlawful processing is discovered or brought to the attention of the Supplier or if there is reason to believe that certain Client Data is unlawful, the Supplier has the right to: (a) notify the Client of such unlawful Client Data; (b) deny its publication on the Web Site or its insertion to the System; (c) demand that the Client brought the unlawful Client Data into compliance with the Agreement, best practices at the Web Site or applicable law; (d) temporarily or permanently remove the unlawful Client Data from the Web Site or Account, restrict access to it or delete it.
If the Supplier is presented convincing evidence that the Client Data is not unlawful, the Supplier may, at its sole discretion, restore such Client Data, which was removed from the Web Site or Account or access to which was restricted.
Downgrading of the current Plan may cause the loss of Client Data.
Intellectual Property Rights
Third-Party Sites, Products and Services
The Curlec Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Clients. The Supplier does not endorse any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore, the Supplier makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Disclaimers; No Warranty
UNLESS OTHERWISE EXPRESSLY STATED BY THE SUPPLIER, THE SUPPLIER, ITS IMMEDIATE HOLDING COMPANY AND THEIR AFFILIATES DO NOT WARRANT THAT THE CURLEC SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE CURLEC SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CURLEC SERVICES AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE CURLEC SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY THE SUPPLIER, THE SUPPLIER, ITS IMMEDIATE HOLDING COMPANY AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE CURLEC SERVICES, OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
Modification of the Services
The Supplier reserves the right to modify certain parts or elements of the Curlec Services from time to time by notifying the Client beforehand. The notification of the modifications is displayed on the Web Site when logging in to the Account. The prior notification period for modifying the Plans and the rates of Fees contained therein, shall be 30 days before the effective date of such modification.
If the Client does not accept the modification, then the Client shall notify the Supplier before the effective date of the modification, and the Agreement will terminate on the effective date of the modification pursuant to which any advance payments shall be forfeited. In the absence of the Client’s notice of non-acceptance, the Client’s continued use of the Curlec Services, or any part or element thereof, after effective date of modifications (except for modifications of Plans and Fees) shall indicate its consent to the modifications.
The Supplier shall not be liable to the Client or to any third person for any modification, suspension or discontinuance of the Curlec Services, or any part or element thereof.
Termination of the Agreement
If the Client or User does not end or cure the breach within the term set by the Supplier, the breach is considered to be a material breach.
Upon material breach of the terms of the Agreement by a Client or User, the Supplier has the right to permanently:
The Supplier is entitled to use the same or similar remedies against any other persons who use the Curlec Services in breach with these Terms.
Notwithstanding the foregoing, the Supplier may also apply any other remedies available to it under the applicable law.
Upon application of any remedies, the Client or User may lose Access or suffer a loss of certain features, functions, parts or elements of the Curlec Services.
If the Supplier has reasonable grounds to believe that the Client’s or User’s use of the Curlec Services, including the Account may harm any third persons, the Supplier has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.
Limitation of Liability
Supplier shall not be liable to the Client for any claim by any User or third persons against the Client arising out of the Client’s failure to: (a) provide the Supplier with accurate information about the Client, Users or Account; (b) notify the Supplier of any reasons due to which a User does not have the right to use the Account on behalf of the Client; (c) assure the lawfulness of the Client Data; (d) assure the necessary rights to use the Client Data; or (e) abide by any of the restrictions described in Section I.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL THE SUPPLIER, ITS IMMEDIATE HOLDING COMPANY OR THEIR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF THE CURLEC SERVICES, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE CURLEC SERVICES OR ANY LINKED SITES, THE CURLEC MATERIALS, OR ANY OTHER INTERACTIONS WITH THE SUPPLIER, EVEN IF THE SUPPLIER OR AN AUTHORIZED REPRESENTATIVE OF THE SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, THE SUPPLIER’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
The Supplier’s liability in contract, tort, negligence, product liability or otherwise however arising out of or in connection with the performance of their obligations under the Agreement for all events or series of connected events occurring in any year of the term of the Agreement, shall not exceed in the aggregate 100% of the Fees paid by the Client for the use of Account pursuant to the Agreement during 6 months prior to the event giving rise to liability.
NO Party shall be liable to ANY other for any failure or delay in the performance of its obligations hereunder as a result of any cause beyond its reasonable control, including but not limited to default or failure of a third party (including telecommunications operators, suppliers, installers or maintainers), war, riot, civil common strike, lockout or other industrial action, act of God, storm, fire, earthquake, explosion, flood, electrical failure, confiscation and action or threat of action of any government or government agency provided that it endeavours to minimize the effect of the force majeure event on its performance of its obligations. If such delay or failure continues for more than ninety (90) days, the non-affected Party(ies) shall be entitled to terminate the Agreement forthwith by notice in writing to the other party provided that all sums due by the Client for any Services supplied prior to the date of termination shall remain payable in accordance with the Agreement.
THESE LIMITATIONS OF LIABILITY AND DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY LINKED SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN THE SUPPLIERS AND RECEIVED THROUGH THE PLATFORM OR RECEIVED THROUGH ANY LINKED SITES.
YOU ACKNOWLEDGE AND AGREE THAT THE SUPPLIER HAS OFFERED THE CURLEC SERVICES, SET THE PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND THE SUPPLIERS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND THE SUPPLIERS. THE SUPPLIERS WOULD NOT BE ABLE TO PROVIDE THE CURLEC SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.