STANDARD CAMPAIGN TERMS
- REPRESENTATIONS & WARRANTIES. The Partner represents and warrants that it is the owner, operator, and/or otherwise has all the necessary rights, licenses, and/or is legally authorized to the manage and operate the brand and business as stated in Item 5 of the Collaboration Form (“Partner’s Brand and Business”), for the purposes envisaged in this Agreement.
The Partner represents and warrants that it possesses all the necessary rights, licenses, or is otherwise able to procure that all its outlets, websites, or mobile application in Malaysia (except where specifically expressed to be excluded) shall participate and/or carry out the Campaign upon the terms and conditions stated in the Collaboration Form.
- CAMPAIGN COLLABORATION MECHANICS. The Campaign shall be named, referred to, and/or marketed by the name stated in Item 7 of the Collaboration Form (the “Campaign Title”).
The Partner shall carry out the Campaign in manner as set out in Item 8 of the Collaboration Form (the “Campaign Mechanisms”) at all its participating outlets as listed in Item 15 of Collaboration Form (the “Participating Outlets, Websites, or Mobile Applications”) throughout the Campaign Period.
Unless otherwise stated, it is understood by the Parties that the basis of the collaboration shall be promoting the usage of the TNG eWallet. The Partner shall ensure the enablement and availability of the payment acceptance of TNG eWallet throughout the Campaign Period.
- CAMPAIGN PERIOD. The Campaign shall take effect during the period as set out in Item 6 of the Collaboration Form (the “Campaign Period”).
- SUBSIDIZED AMOUNT CONTRIBUTED BY THE PARTIES. The Parties agree to offer the customer a discount, cashback, or any form of rewards during the Campaign Period upon the customer making payment using TNG eWallet at the Participating Outlets, Websites, or Mobile Applications. The Parties shall contribute or subsidize the transaction (“Subsidized Amount”) as follows:
(i) TNGD: as stated in Item 9(i) of the Collaboration Form; (the “TNGD Subsidized Amount(s)”)
(ii) the Partner: as stated in Item 9(ii) of the Collaboration Form; (the “Partner’s Subsidized Amount(s)”).
The Parties agree to subsidize for each transaction (or redemption) in accordance with the Campaign Mechanisms up to a number of transactions as set out in Item 10 of the Collaboration Form (“Total Subsidized Transactions”).
The Campaign shall take effect during the Campaign Period or until the total fund contributed by the Parties as set out in Item 11(i) and Item 11(ii) of the Collaboration Form (the “Maximum Subsidized Amount”) have been exhausted, whichever shall be earlier.
In the event the Partner is invoicing TNGD for its Subsidized Amount(s), the aggregate invoice amount shall not exceed the TNGD Maximum Subsidized Amounts including any applicable taxes.
TNGD shall not be liable to make any payment of any Subsidized Amounts under the Campaign exceeding the TNGD Maximum Subsidized Amount. For the avoidance of doubt, the Campaign shall cease immediately upon reaching the TNGD Maximum Subsidized Amount.
- KEY PERFORMANCE INDICATORS AND TARGETS. Parties shall monitor and ensure that the Campaign shall achieve the KPI and Target stated in Item 12 of the Collaboration Form on or before the expiry of the Campaign Period (the “KPI and Target”).
In the course of monitoring the transactions (and other aspects and variables) and at any time during this Campaign, shall the Partner become (or ought to become) aware that the KPI and Target will not likely be met, then the Partner shall immediately inform TNGD and the Parties shall in good faith agree on a mutual course of action to remedy the same.
- PAYMENT TERMS AND REPORTS. The Parties shall update each other and submit a report (“Report”) with details of the sales made and/or other agreed metrics in the frequency stated in Item 13 of the Collaboration Form (“Report Frequency”) under the Campaign. In the event that there is a discrepancy, then the report based on TNGD’s back-end and/or other systems shall prevail.
The Parties shall issue the invoice for the Subsidized Amounts based on the payment terms as stated in Item 14 of the Collaboration Form (“Payment Term”).
In circumstances whereby the Partner shall invoice TNGD for payment, it shall be subjected to the receipt of a valid tax invoice containing at least the following information and/or supporting documents (as may be applicable in the context of this Agreement):
(i) extract copy of fee payment method;
(ii) request signed and/or approved by a duly authorized TNGD personnel;
(iii) a report supporting or evidencing the amounts due; and/or
(iv) PO order request signed and/or approved by a duly authorized TNGD
All invoices shall be addressed to the Finance Department of TNG DIGITAL SDN BHD, and where no payment duration is specified, TNGD shall pay the same within thirty (30) days from the date of receipt of the invoice.
In the event any payment is due to either Party, and such payment is not made within the prescribed period, the owed Party may impose interest on such outstanding amounts at the rate of eight percent (8%) per annum calculated on a daily rest until the same shall be fully settled.
- TERMS AND CONDITIONS APPLICABLE TO CUSTOMERS/USERS. Throughout the Campaign Period, the Partner shall ensure that its system, website, all its cashier and/or other relevant staff are familiar with the terms and conditions of the Campaign and ensure that its customers that wish to participate in the Campaign shall abide by the terms and conditions stated in Item 16 of the Collaboration Form (the “Campaign Terms and Conditions”) or as shall be published by TNGD. TNGD may amend the aforementioned terms and conditions at its sole discretion from time to time.
- ADDITIONAL TERMS. The Campaign shall be subject to the additional terms stated in Item 17 of the Collaboration Form (the “Additional Terms”). If necessary for the purposes of a particular Campaign, the Parties may agree to Additional Terms that conflict with the Standard Campaign Terms and the General Terms and Conditions in which case, the Additional Terms shall override and prevail over the conflicting terms to the extent necessary only.
Notwithstanding any of the foregoing or anything to the contrary, TNGD reserves the right to alter, extend, or terminate the Campaign, and/or amend the terms and conditions of the Campaign. In the event of any dispute directly or indirectly arising from the Campaign, the decision of TNGD shall be final.
- USAGE OF LOGO AND NAME. In regard to any promotional or marketing material which may contain or shall contain any reference to the other Party or its brand, including, but not limited to, the usage of logo or name, the Party shall obtain the other Party’s written approval prior to the use and/or display of such materials, which may not be unreasonably withheld.
GENERAL TERMS AND CONDITIONS
- The Parties hereby intend to collaborate in accordance with the terms provided in the Collaboration Form. The collaboration shall at all times be subjected to the terms and condition stated herein and including any forms, schedules, appendices, and annexes attached hereto.
- This Agreement shall come into full force, effect commencing the Date of Agreement, and continue to be valid for the duration throughout the Campaign Period or until otherwise sooner terminated in accordance with the terms herein.
- Unless otherwise agreed, nothing in this Agreement confers any exclusivity on either Party in respect of any arrangements herein and each Party shall be entitled to enter into any similar or other arrangements with third parties.
- The Parties agree that they will not make any public announcement, issue press releases, advertise, promote, or disclose the existence and the terms of this Agreement and/or Collaboration Form except in accordance with the terms of this Agreement or with the express written consent of the other Party, which consent shall not be unreasonably withheld.
Representations and Warranties
- Each Party represents and warrants to and for the benefit of the other as follows:
(i) it is duly organized and validly existing under the laws of its jurisdiction of incorporation;
(ii) it has (and will maintain) the power, capacity, right, authorization and has taken all necessary action (where applicable) to enter into, exercise its rights and perform and comply with its obligations under this Agreement;
(iii) this Agreement constitutes its legal, valid and binding obligations, enforceable in accordance with the terms hereof;
(iv) its entry into, exercise of its rights and/or performance or compliance with its obligations under this Agreement do not and will not violate or contravene: (a) its constitutive documents, (b) any agreement to which it is a Party to or is otherwise bound, (c) any law or regulation or (d) any court, arbitral or administrative judgment or order;
(v) each signatory to this Agreement is duly authorized to sign this Agreement on behalf of the Party identified; and
(vi) it has (and will maintain) adequate facilities (including staff training, internal controls, and technical equipment) to: (a) to comply with its data protection and confidentiality obligations hereunder, and (b) to fulfil its obligations hereunder generally, including, but not limited to, obligations that are technical in nature; and
(vii) to co-operate and collaborate with each other in the all matters under this Agreement.
- For the purposes hereof, the term “Intellectual Property” shall mean all intellectual property and proprietary rights, including all present and future rights conferred by statutes, common law or equity in or in relation to any copyright, trademark, trade name, trade logo, trade slogans, service mark, industrial design, patent, layout design of integrated circuit, business method, domain name, trade secret, promotional material, software, algorithms, mask works, branding and any other intellectual property rights in any field or industry.
- Unless expressed otherwise, all ownership to Intellectual Property of each Party shall belong to each Party generally and any use, adaptation or amendments of Intellectual Property shall be subject to the prior written approval of the Party licensing the same. No Party shall use the other Party’s Intellectual Property or mention the other Party in any public communication without prior written approval.
- All Intellectual Property developed by TNGD in the course of this Agreement shall belong to TNGD.
- For the duration of the Campaign Period, each Party grants to each other a non-exclusive, worldwide, royalty-free, non-transferable license to copy, use and display: (a) any logo, trademark, and trade name owned by (or, to the extent that such Party is permitted to grant a sublicense, licensed to) the other Party for the purposes of promoting the TNG eWallet; and (b) such other forms of Intellectual Property as may be agreed by the Parties from time to time.
- Each Party shall use the other Party’s Intellectual Property in accordance with the latter Party’s reasonable instructions having regard to the purpose of such use under this Agreement, each Party warrants that the grant of license herein shall not violate any third party’s rights.
Cooperation for Compliance with the Laws
- The Partner acknowledges that TNGD is obliged to comply with various financial and other laws and the Partner hereby permits TNGD to conduct checks, audits, or investigation into the history of the transactions carried out by the Partner (together with any other relevant records and information) as part of TNGD’s compliance with, in particular, the Anti-Money Laundering Anti- Terrorism Financing and Proceeds of Unlawful Activities Act 2001, the Guidelines on Electronic Money issued by BNM, and with the Laws and government authorities generally.
- Parties agree to provide all necessary cooperation to the other Party to ensure compliance with the laws and to investigate any suspected illegal, fraudulent, suspicious, or improper activity.
- In addition, the Parties undertake to comply with all other laws as may be applicable.
- For the purposes hereof, the term “Confidential Information” shall means any information or material which is: (a) marked as “Confidential”, “Proprietary”, or “Restricted”; (b) not generally known outside of the Parties (including their subsidiaries and affiliates) or otherwise not available to the general public at the time of the disclosure; and/or (c) under the circumstances surrounding disclosure, ought to be treated as confidential; and without derogating from the generality of the foregoing, the terms of this Agreement, business plans, models, methods, and strategies, client and customer lists, client and customer data, technical specifications, drawings and documents, and trade secrets shall be deemed confidential.
- The Parties irrevocably undertake and covenant with each other that it shall not during and after the subsistence of this Agreement divulge, replace, copy, duplicate, reverse engineer, modify, tamper, disclose or transmit to any person whosoever or otherwise make use of and to prevent the publication or disclosure of any Confidential Information unless prior written approval of the other has been obtained or where such disclosure is required by law.
- On request from a Party (hereinafter referred to as the “Disclosing Party”), the other Party (hereinafter referred to as the “Recipient Party”) shall forthwith return to the Disclosing Party any Confidential Information which the Disclosing Party had previously supplied to the Recipient Party. Where such Confidential Information cannot for any reason be returned to the Disclosing Party, then the Recipient Party shall destroy such Confidential Information in such manner as the Disclosing Party shall prescribe.
- Each Party may only disclose or use such information other than in connection with the performance of its obligations under this Agreement if required by law, authorized in writing by the other Party or if such information is or becomes through no default of either Party, public information, is lawfully received by the Party from a third party on an unrestricted basis, or is already known to the Party before receipt from the other party.
- The obligation of confidentiality herein shall continue notwithstanding the termination or expiry of this Agreement.
- Compliance with the Personal Data Protection Act 2010 - The Partner shall at and its officers, employees, servants and/or agents shall at all times comply with the provisions of the Personal Data Protection Act 2010 (Act 709) as may be applicable and undertake to ensure confidentiality and privacy of all personal data received.
- Secrecy - The Partner and its officers, employees, servants and/or agents shall at all times comply with the secrecy provision under Section 133 of the Financial Services Act 2013.
- Indemnity - The Recipient Party agrees to fully indemnify and hold the Disclosing Party harmless from and against any claim, loss or expense that the Disclosing Party may suffer as a result of the breach on the part of the Recipient Party, its personnel officers, employees, servants, representatives and/or agents of this Clause and/or failure to comply with the requirements as to confidentiality herein.
- This indemnity shall survive the termination of the Agreement. For the avoidance of doubt, entities within the Disclosing Party group shall have the full benefit of and protection under this Clause through the Disclosing Party and the definition of Confidential Information (including customer information), Personal Data and other information required to be held under the above secrecy provisions shall cover the entities within the Disclosing Party group, where applicable. The obligations herein shall survive expiration or termination of this Agreement.
- Each Party shall responsible for its own respective tax obligations deriving from the transactions contemplated in this Agreement.
Default & Termination
- This Agreement may be terminated for cause if (a) a Party receives a notice from regulatory authorities alleging concerns over the Campaign; (b) the Campaign is abused; (c) improbable achievement of KPI and Target; or (d) the reputation of TNG eWallet is harmed and lead to unwanted or unfavorable publicity to TNGD, a written notice shall be issued to the Partner, and such termination shall not affect the rights and/or liabilities already accruing to either Party up to the date of termination.
- Events of Default - Without prejudice to other termination rights under this Agreement, the occurrence of any of the following events shall constitute a default (hereinafter referred to as “Default”) of this Agreement:
(i) a Party commits a breach of any provisions of this Agreement and the breach is not remediable or fails to remedy such breach within fourteen (14) days after receipt of written notice from the non-defaulting Party of such breach;
(ii) a Party becomes insolvent or is wound-up or files or has a petition filed against it for its insolvency or winding-up or becomes unable to pay its debts generally as they fall due or makes a general assignment or arrangement or scheme of compromise with or for the benefit of its creditors or a liquidator, receiver, judicial manager, trustee, administrator, agent or similar officer is appointed for the defaulting Party or over all or a material part of the assets of the defaulting Party; or
(iii) a Party is dissolved and goes into liquidation either compulsorily or voluntarily, which in the case of voluntary dissolution, an exception is made for reconstruction or amalgamation approved by the other Party (which approval shall not be unreasonably withheld);
(iv) a Party ceases or threatens to cease to carry on the whole or any substantial part of its business other than in the course of reconstruction or amalgamation approved by the other Party (which approval shall not be unreasonably withheld); or
(v) a Party violates, fails or refuses to comply with the laws, direction of any government authority, or the order of a court or tribunal having competent jurisdiction over the defaulting Party and such default is not remediable or not remedied within fourteen (14) days after receipt of written notice from the non-defaulting Party of such default.
- Consequences of Default - If the Default is not remediable or not remedied within the time frames specified, the non-defaulting Party shall be entitled to forthwith terminate this Agreement by issuing a written notice to that effect and the following consequences shall ensure that all rights and obligations of the Parties shall cease to have any further effect and none of the Parties shall have any claims against the others for costs, damages, compensation or otherwise save in respect of any right of action already accrued to any of the Parties in respect of any breach, non-observance or non-performance or repudiation of any of the provisions of this Agreement by the other Party occurring prior to such termination or out of which such termination shall have arisen.
- Any dispute shall in so far as it is possible be amicably settled, by mutual consultation and consent between the Parties and in this regard, the Parties shall be obliged to attempt a good faith resolution for a minimum period of fourteen (14) days from the date of the first of such attempts (by the issuance of a notice from either Party to that effect) before resorting to resolution through any legally binding forum or other methods.
- For the avoidance of doubt, Clause 27 above shall not prejudice either Party’s right to terminate this Agreement as provided in any other provision, including, but not limited to, Clause 25, and the obligation to attempt an amicable settlement shall not have the effect of suspending any time frames herein.
Governing Law & Jurisdiction
- This Agreement shall be governed by and construed in accordance with the laws of Malaysia (without regard to conflict of laws principles) and the parties hereby submit to the exclusive jurisdiction of the courts of Malaysia.
- No Party shall be liable for any indirect, incidental, or consequential loss or damage of any kind, including damages for lost advantage, lost savings, loss of data or loss of profit, whether or not the responsible Party has been advised of the possibility of such damages or whether foreseeable or otherwise and regardless of the form of action whether in contract, warranty, strict liability, tort (including negligence of any kind), breach of statutory duty, or other forms of action.
- Any limitation of liability agreed hereunder shall not apply, restrict, or exclude a defaulting Party’s liability in cases of wilful or intentional misconduct, or gross negligence by the defaulting Party in which case the defaulting Party shall be fully liable to indemnity the non-defaulting Party of all losses on a full indemnity basis. Without derogating from the generality of the foregoing, such acts shall include, but shall not be limited to:
(i) any liability under this Agreement to pay any fees, commissions, and/or other consideration to TNGD together with any accrued interest thereon;
(ii) fraud or fraudulent misrepresentation;
(iii) death and personal injury due to negligence;
(iv) damage to real and personal property;
(v) wilfully malicious conduct;
(vi) breach of any Intellectual Property rights;
(vii) breach of the confidentiality obligations herein;
(viii) any acts or omissions which give rise to third party claims against the innocent Party; and
(ix) any other conduct to the extent that any exclusion or limitation is prohibited by the Laws.
Notwithstanding anything to the contrary under this Agreement, TNGD shall not be liable for any damages or losses caused by reasons beyond its reasonable control.
- Subject to the other provisions of this Agreement expressly excluding any limitation of liability, the aggregate liability of TNGD under this Agreement whether arising out of contract, tort, negligence or otherwise shall be limited to the amount as set out in Item 11(i) of the Collaboration Form only.
- All notices, requests, demands and other communications required or permitted to be given or made under this Agreement or in connection therewith shall be given to TNGD and/or the Partner following the details provided respectively and shall be deemed duly given: (i) if made in writing and delivered personally, on the date of delivery; (ii) if sent by prepaid registered post or a recognized “next-day” courier service, on the third (3rd) business day; (iii) if by sent fax, when transmitted and provided receipt is confirmed; or (iv) if given by electronic mail, when such electronic mail is transmitted.
- Either Party may notify the other Party in writing of a change to its name, address, addressee or facsimile number for the purpose of this collaboration provided that such notification shall only be effective on:
(i) the date specified in the notification as the date on which the change is to take effect; or
(ii) if no date is specified or the date specified is less than seven (7) days after the date on which notice is given, the date falling seven (7) days after notice of any such change has been given.
- In performing the obligations under this Agreement, the Parties will also comply with all applicable anti-bribery and anti-corruption laws (and related regulations and guidance). In particular, each Party hereby acknowledges and agrees:
(i) to comply with the Malaysian Anti-Corruption Commission Act 2009, and that it shall not act in such a way that is or could be construed as a violation of these laws and requirements, including but not limited to offering a bribe or making a facilitation payment to a public official or to any other Party;
(ii) that it will ensure that its activities in connection or relating to its obligations under the Agreement will not cause the other Party to be in breach of any anti-bribery and anti-corruption laws (and related regulation and guidance);
(iii) that it will ensure that it has appropriate internal procedures within its organization to prevent bribery by its workforce and other people under its control; and
(iv) if a Party, in connection with or relating to its obligations under the Agreement, is asked to partake in any activity, that is in violation of any anti-bribery or anti-corruption laws, or becomes aware of any such conduct by its workforce or within its control and concerning or relating to the Agreement, such Party agrees to immediately report the details of this to the other Party.
Transparency and Integrity
- It is the policy of TNGD to be honest and transparent to its users and to the public generally and TNGD will not tolerate any abuse, fraud, scams, misleading practices, or misrepresentation of facts by its business partners, affiliated entities, or other third parties using TNGD’s name, assets, logo, trademark, brands, products, or other things that may be perceived to be affiliated with TNGD or the TNG eWallet.
- Any such practice or any practice that may disparage the reputation TNGD by the Partner, its affiliates, and/or its front-facing personnel (e.g. informing customers that purchases cannot be made using the TNG eWallet because the “TNG eWallet system is down” if such statement is untrue), or using anything supplied by TNGD for purposes other than intended shall be deemed to be a material breach and grounds for immediate termination without prejudice to any rights of TNGD to claim and to be indemnified for any losses or damages suffered thereby.
- No Partnership -This Agreement shall not constitute a partnership or any agency between the Parties. No Party has the power or the right to bind, commit or pledge the credit or any other Party or the Company.
- Costs - Each Party shall bear its own costs, legal fees and other expenses incurred in the preparation, negotiation and execution of this Agreement.
- No Waiver - No failure to exercise or delay in exercising on the part of any Party any right, power or privilege under this Agreement shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or any other right, power or privilege.
- Severability - In the event that any of the provisions of this Agreement is declared by any judicial or other competent Authorities to be illegal, invalid, void or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect.
- Entire Agreement - This Agreement supersedes any previous agreement between the Parties in relation to the matters dealt with herein and represents the entire understanding between the Parties in relation thereto.
- No Variation - Unless stated otherwise, this Agreement shall not be varied, modified or cancelled in any respect unless such variation, modification or cancellation shall be expressly agreed in writing by a duly authorized director or representative of each Party.
- Counterparts - This Agreement may be signed in any number of counterparts and by the Parties on separate counterparts, each of which when so executed shall be an original, but all counterparts shall together constitute one and the same document.