Customer Data and Data Protection for the Software
1. Ownership and Responsibility:
a.You retain all ownership rights in and to Customer Data and are solely responsible for:
i.Ensuring the legality, appropriateness and integrity of Customer Data.
ii.Maintaining the completeness, reliability, accuracy and quality of Customer Data.
iii.Obtaining and maintaining all necessary licenses and consents required for the use of
Customer Data, if applicable.
iv.Entering Customer Data into the Software.
b.You acknowledge that:
i.We are not responsible for any infringement or violation of proprietary rights, other rights,
or applicable laws related to Customer Data and communications.
ii.Any Personal Data within Customer Data has been collected and is maintained in
compliance with relevant Data Protection Laws in accordance to all Malaysian Laws.
2. Data Protection Compliance:
a. Both parties shall adhere to all applicable Data Protection Laws (Personal Data Protection Act 2010) while fulfilling their obligations under this Agreement.
b. In the event that We process Personal Data as part of providing the Software or Support Services, the Data Processing Agreement in as applicable, shall govern such processing
c. We hereby commit that the data collected will not be utilized for any purposes beyond the scope of our agreement, and we shall not integrate it with any third-party system, club, or association without the explicit consent of the data subject
3. Limited Warranties for the Software Subscription
3.1 Performance Warranty:
a. Within the limitations of this Section, We warrant that the Software, the Digital Martial Arts Club Management System, and any Releases shall perform substantially as specified in the Documentation during the Subscription Term, provided they are used in accordance with the terms of this Agreement.
b. Support Services will be delivered with due care, skill, and in accordance with recognized standards of good practice.
3.2 Scope of Warranty:
a. We do not provide any warranties beyond those explicitly outlined in the Documentation. Any additional warranties must be made in writing and confirmed by Us.
b. You acknowledge that, given the current state of technology, the Software may not be completely error- free or operate without occasional interruption.
3.3 Exclusions from Warranty:
a. We specifically do not warrant against issues resulting from Your use of the Software with third-party software, misuse, improper testing, unauthorized repair attempts, or modifications made by You, or any other cause beyond the intended use of the Software.
b. We do not warrant against Malware, data breaches, or data losses that could not have been avoided by reasonable, state-of-the-art security practices in accordance with Our then-current security standards.
c. We do not warrant that the Software will achieve Your specific intended results or that it has been developed to meet Your individual requirements.
3.4 Warranty Claim Resolution:
a. During the Subscription Term, if the Software does not conform to the warranty provided in Section 9.1, We will, at Our expense:
i. Correct any such non-conformance, or
ii. Provide You with an alternative means to achieve the desired performance.
b. If correction or substitution is not reasonably feasible, We may, at Our discretion:
i Refund You any prepaid fees covering the remainder of the Subscription Term for the
affected Software.
ii. Terminate Your use of the affected Software for which You have received the refund.
SUCH CORRECTION, SUBSTITUTION, OR REFUND SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY, AND OUR SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF WARRANTY.
3.5 Effect on Other Orders:
Warranty claims made under one Order shall not impact any other Orders or other contracts between You and Us.
3.6 Exclusive Warranty:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THIS SECTION ARE EXCLUSIVE AND SUPERSEDE ALL OTHER WARRANTIES, WHETHER
EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, ACCURACY, CONFORMITY TO DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON- INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY US, OUR AFFILIATES, SUBCONTRACTORS, AND SUPPLIERS.
3.7 Non-Contingency Clause:
Your purchase of the Software is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written public comments, statements, or representations We made regarding future functionality or features.
This revised section aligns with the Software Subscription Agreement, focusing on warranties and remedies applicable to the software.
4. Limitation of Liability for the Software
4.1 Overall Liability Cap:
OUR TOTAL LIABILITY TO YOU ARISING FROM OR RELATED TO THIS AGREEMENT (WHETHER DUE TO BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE) SHALL BE LIMITED TO THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
4.2 Exclusion of Indirect Damages:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO SECTION 11.4, WE SHALL NOT BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, ANTICIPATED SAVINGS, BUSINESS OPPORTUNITY,GOODWILL, LOSS OF REVENUE, OR COSTS INCURRED TO PROCURE SUBSTITUTE GOODS OR SERVICES, ARISING FROM THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY (INCLUDING CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 Fee Acknowledgment:
Both parties acknowledge that the fees charged for the Software are partly based on the limitations set forth in this Section.
4.4 Exceptions to Limitations:
THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO:
i.OUR INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER SECTION 10;
ii.LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THAT OF
OUR OFFICERS, EMPLOYEES, CONTRACTORS, OR AGENTS;
iii.FRAUD OR FRAUDULENT MISREPRESENTATION; OR
iv.ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
4.5 Data Backup Responsibility:
You acknowledge and agree that you are responsible for maintaining backups of your data.
5. Confidentiality for the Software Subscription
5.1 Confidential Information Protection:
a. Both parties shall retain all rights in their respective Confidential Information. Each party agrees to treat the other party’s Confidential Information, acquired before and during the performance of this Agreement, as confidential. This Confidential Information shall only be used for the purpose of fulfilling this Agreement.
b. Confidential Information shall not be reproduced in any form except as necessary to achieve the objectives of this Agreement. Any reproductions of the other party’s Confidential Information shall include all confidential or proprietary notices or legends present on the original.
c. Each party, regarding the other party’s Confidential Information, agrees to:
i. Take all necessary measures to protect it to the same standard it uses for its own
proprietary and Confidential Information, with no less than a reasonable standard of care to
maintain strict confidentiality.
ii. Not disclose the other party’s Confidential Information to anyone other than those
representatives whose access is essential for the performance of this Agreement and who
are bound by confidentiality obligations similar to those provided herein.
d. Each party is responsible for ensuring its representatives’ compliance with the provisions of this Section.
5.2 Reporting Breaches:
If a party becomes aware of a suspected or actual breach of confidentiality, misuse, or unauthorized dissemination related to the other party’s Confidential Information, it shall promptly notify the other party in writing.
5.3 Exceptions to Confidentiality:
The provisions in Section 12.1 shall not apply to any Confidential Information that:
a. Is independently developed by the receiving party without reference to the disclosing party’s Confidential Information.
b. Is lawfully received without restrictions from a third party with the right to provide such Confidential Information.
c. Has become generally available to the public without any contractual breach.
d. Was known to the receiving party before disclosure without restrictions.
e. The disclosing party has agreed in writing to be free of such restrictions.
f. Must be disclosed pursuant to statutory law or a court, administrative, or governmental order. In such cases, the receiving party shall promptly inform the disclosing party to enable legal protection or prevent or limit disclosure, to the extent legally possible.
5.4 Return or Destruction of Materials:
Upon request, the receiving party shall either destroy or return to the disclosing party all materials containing the Confidential Information, along with any copies or derivatives. However, this obligation does not apply to electronically-exchanged Confidential Information copied for routine information technology backup, or to Confidential Information that must be retained per mandatory law. Such retained Confidential Information shall remain subject to the confidentiality obligations of this Agreement.
5.5 Duration of Confidentiality Obligations
The obligations outlined in this Section shall apply to each disclosure of Confidential Information for a period of 5 (five) years from the date of the initial disclosure. However, trade secrets shall be protected until they no longer qualify as trade secrets under applicable law.