Support Agreement Asia
LICENSE, SUPPORT AND UPDATE AGREEMENT
The License, Support and Update Agreement has been executed between MONITOR ERP SYSTEM SDN BHD (Company No. 1046938M), a company incorporated in Malaysia and having its registered office at [address] (hereinafter called “MERPS”) and Customer Sdn. Bhd. (Company No. xxxxxxxxx), a company incorporated in [country] and having its registered office at [address] (hereinafter called “the Customer”).
1.1 The License
MERPS grants to the Customer a time-limited, non-exclusive, non-transferable license to use the software called “MONITOR” in the Customer’s own business.
The Customer shall not modify, revise, customize, improve, adjust and make changes whatsoever to MONITOR without the written consent of MERPS. The rights, title and interest in and to MONITOR belong to MERPS and shall not be conveyed to the Customer and shall remain solely and exclusively vested with MERPS.
1.3 Hosting etc.
Both parties are aware that the Customer may sign hosting agreements or similar agreements, within the scope of this Agreement. However, such hosting agreements or similar agreements does not imply that MERPS agrees that MONITOR will be signed or assigned to other parties.
1.4 Decompilation and Disassembly
The Customer shall not and shall not permit any other person to create or duplicate or reconfigure or decompile or disassemble MONITOR or to do so into source code or any other software to analyze, modify or in other ways open or use this source code or software.
2 SCOPE OF WORK
Subject to the terms and conditions herein, MERPS agrees to provide support services to the Customer, at no extra charge if this Agreement is still valid and subsisting, regarding MONITOR. The support services provided by MERPS to the Customer shall only include the services set forth in 2the Support Information applicable at the respective time in the following link: http://www.monitorerp.com/customerweb/ conditions-support/. MERPS retains the right to change or modify the support services offered herein at any time and from time to time at its sole discretion. It shall be the Customer’s responsibility to check the web link periodically for any changes.
The following support and any other support not stated in Clause 2.1 shall be excluded from this cost-free support services:
- adaptations of MONITOR or support due to adaptation of MONITOR;
- using MONITOR procedures that have been provided by MONITOR Help-texts;
- training sessions;
- services in connection with the update;
- hardware and network errors;
- internet connection errors;
- installation that has not been performed by MERPS or consulting or distribution company which has been appointed by MERPS at the respective time concerning MONITOR (hereinafter called "the Distributor"); and
- outstation communication, outstation traveling, outstation accommodation and per diem allowances. These will be invoiced to the Customer at cost.
The following updates (excluding services) are included in the Agreement:
- continuous updates and improvements of MONITOR and documentation; and
- adjustments of non-conformities in MONITOR that are non-conformities confirmed by MERPS.
Any costs incurred in the testing, adjusting and adaptation due to changes in the computing platform shall be paid by the Customer.
4 RESPONSIBILITIES OF CUSTOMER
4.1 Responsibilities of the Customer
The Customer shall be responsible:
(a) to ensure that MERPS’s Support personnel are provided with all information, facilities, services, supplies, consumables or associated items reasonably required by MERPS to enable them to comply with its obligation under this Agreement;
(b) to maintain, or cause to be maintained, all its hardware that is used in any connection with MONITOR in a manner that does not in any way interfere with the operation of MONITOR; and
(c) to be responsible for any errors, data corruption, operational scheduling conflicts or software failures caused by the misuse of MONITOR due to any negligence, error, malicious intent or misunderstanding by the Customer.
MERPS shall be responsible for the installation, project management, training sessions and other services related to the implementation of MONITOR according to the price list applicable at the respective time. Travelling expenses will be added. The terms of payment are thirty (30) days from the date of invoice.
5.2 Services Performed by Authorised Distributor of MERPS
Any services performed by authorised distributor of MERPS will be invoiced by the authorised distributor directly to the Customer.
6.1 Adaptations Created by MERPS
To any adaptations created and delivered by MERPS, the Customer will be offered to sign a separate update agreement, which means that MERP takes responsibility for the future functionality of the adaptation after an update of MONITOR. The Customer has the right to actively re-sign update agreements regarding adaptations.
6.2 Adaptations Created by Customer or Distributor
MERPS shall not be responsible for any adaptations like "custom reports" and "form adaptations" created, modified or altered in any way by the Customer or its distributor, other than by MERPS or at MERPS’s direction.
7.1 Fee and Annual Cost
The Customer shall pay the License Fee to MERPS within thirty (30) days from the date of MERPS’s invoice.
Any dispute arising from MERPS’s invoices shall be made known to MERPS in writing within fourteen (14) days from the date of receipt of such invoice by the Customer. The amount shall be payable after the dispute has been resolved between both parties. If the Customer does not raise any dispute after the said fourteen (14) days, it shall be deemed that the Customer has accepted the invoice and the invoice shall be final.
7.3 Failure to pay
In the event the Customer fails, neglects or refuses to pay the invoice within the due date, MERPS is entitled to levy interest at the rate of two per centum (2%) per annum above the base lending rate of Malayan Banking Berhad. This failure, neglect and refusal to pay shall be deemed a material breach of this Agreement and MERPS shall be entitled at its option to terminate this Agreement without prejudice to MERPS’s other rights and remedies against the Customer for recovery of any money and or interest then remaining due or any part thereof or in respect of any antecedent breaches of this Agreement.
7.4 Additional services
In the event the Customer requires MERPS to provide additional services outside the scope of this Agreement or additional licenses, such services or licenses may be purchased from MERPS at a prevailing price at the material time which will be invoiced separately.
8 VALIDITY PERIOD
8.1 Validity Period of the Agreement
The Agreement shall be valid for a period of one (1) year from the date of this Agreement and it shall be automatically extended for another year unless the Agreement has been terminated according to the stipulated terms herein.
8.2 Termination notice
Both parties may terminate this Agreement at any time by giving the other party a three (3) months’ written notice. Should there be any termination, there shall be no refund of the License Fee or part thereof by MERPS.
8.3 Receiver appointed
If either party shall pass a resolution or the Courts shall make an order that the company be wound up otherwise than for the purpose of reconstruction or amalgamation or if a receiver or manager on behalf of a creditor shall be appointed, the other party shall be entitled to terminate this Agreement by giving the affected party a written notice.
8.4 Consequences of Termination of Agreement
When the Agreement is terminated, the Customer's right to use MONITOR will terminate and the Customer shall confirm and warrant in writing that they are no longer using MONITOR.
9 LIMITATION OF LIABILITY
9.1 Limitation of Liability
MERPS shall in no event be liable for any damage whether direct, indirect, special or consequential arising in any way of the use of MONITOR.
9.2 Customer’s failure to perform
In no event shall MERPS be liable for any damage caused by the Customer’s failure to perform its responsibilities or for any indirect or consequential damages, including, but not limited to, loss of profits, anticipated savings or for any claim made against the Customer by any other party. In addition, MERPS shall not be liable for any damages claimed by the Customer based on any third party claim.
9.3 Exclusion of Liability
MERPS shall totally be excluded from the following liabilities for errors or defects in MONITOR due to:
(a) the use that is in conflict with MERPS 's rules or MONITOR's documentation;
(b) an installation or modifications performed by the Customer or the Distributor or a service provided by the Distributor under a separate agreement;
(c) the use that is in conflict with bases and information provided by MERPS;
(d) the hardware, software or other equipment that has not been provided by MERPS;
(e) the use of another version of MONITOR than the version MERPS has provided previously;
(f) power failure; or
(g) non-conformities of performance in MONITOR in relation to information provided by the Distributor, if that information differs from the Help-texts in MONITOR.
9.4 Sole remedy for damages
The Customer’s sole and exclusive remedy for damage or loss in any way connected with the Support Services provided by MERPS herein, whether by breach of contract or warranty, shall be having MERPS offering services to diagnose and rectify any defect of MONITOR at MERPS’s own cost.
10.1 Force Majeure
- Neither party shall be liable to the other for any loss, injury, delay, damage or distress or other casualty suffered or incurred by such other party due to strikes, labour disputes, riots, storms, fires, inability to obtain parts, materials, supplies, or due to explosions, acts of God, war or any other cause similar thereto which is beyond the reasonable control of that party (called “Force Majeure”) and any failure or delay by such party in the performance of any of its obligations under this Agreement due to one or more of the foregoing causes shall not be considered a breach of this Agreement.
(b) In the event of a Force Majeure situation which hinders any party in the discharge of its respective obligations under the Agreement, the party claiming to be affected thereby shall promptly notify the other party by giving the estimated extent and duration of such inability to perform its obligations hereunder and other reasonable full particulars and shall use its best endeavours to remedy the situation. In the event the continuing occurrence of an event of Force Majeure is such that it frustrates the original intentions and objectives of the Agreement or any part thereof, either party shall have the right to terminate the Agreement or any part thereof by thirty (30) days written notice served on the other party.
Any notice required or permitted by this Agreement shall be in writing, and shall be deemed given to the intended party when copies are delivered personally to the party, or fourteen (14) days after a copy has been sent by registered mail addressed to the party.
This Agreement shall not be assignable by either party without the prior written consent of the other party, such consent shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto.
10.4 Confidentiality and Data Protection
(a) The term "confidential information" refers in this Agreement to all information – technical, commercial or other – regardless of whether the information has been documented or not, except for:
- information that is publicly known or will be publicly known by some other way than through any breach of this Agreement;
- information that the party can prove that it already knew before it received it from the other party; or
- information that the party has received or will receive from a third party without being bound by the duty of confidentiality to that party.
However, in cases referred to under (iii) above, the party has no right to disclose to an outsider that the same information also has been received from the other party according to this Agreement.
- Both parties agree to treat as confidential all information received from the other party, or acquired in the course of performance of this Agreement which the other party has indicated in writing to be confidential except if such information already exists in the public domain, is already in MERPS’s possession, is independently developed by MERPS outside the scope of this Agreement, or is rightfully obtained from third parties. Both parties agree to disclose this information only to those of its employees and any third party who need to know it for the performance of this Agreement, and to ensure that such employees and the relevant third party are informed and agree to keep such information confidential. Both parties further agree that they and their employees and the relevant third party shall observe all security requirements in effect from time to time at the other party’s premises, and shall comply with the other party’s security procedures for confidential material. This section shall survive termination of this Agreement.
- Any action for breach of confidentiality must be brought within one (1) year after either party knew or should have reasonably known of the breach, or such longer period as the parties may agree in writing.
(d) Both parties undertake to comply with the rules, guidelines or regulations relating to personal data and all applicable data protection laws of Malaysia.
If any term or provision of this Agreement shall be held invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement shall remain in force and effect and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement.
10.6 Governing Law
(a) This Agreement shall be deemed to be a contract made in Malaysia and shall be subject to, governed by and interpreted in accordance with the laws of Malaysia.
(b) In the event that reconciliation is not achieved, any controversy or claim arising out of, in connection with or relating to this Agreement or a breach of performance thereof, shall be resolved by:
(i) arbitration according to Arbitration Act of Malaysia, or
(ii) submitting to the jurisdiction of the Courts of Malaysia.
(a) No amendments or modifications of this Agreement or any provisions of this Agreement shall be effective unless made in writing and signed by the both parties.
(b) No waiver of any rights arising under this Agreement shall be effective unless made in writing and signed by the party against whom the waiver is to be enforced. No waiver of any breach of the Agreement shall be deemed to be waiver of any other or any subsequent breach. The failure of either party to enforce at any time of the provisions of the Agreement shall in no way be interpreted as a waiver of such provision, except as specifically provided in this section.
(c) For the purpose of this Agreement, MERPS is not an agent of the Customer and MERPS has no express or implied authority to act on behalf of, or make any representations whatsoever on behalf of the Customer. MERPS is an independent contractor and neither party shall have the power or authority to bind the other party to any contract or obligation.
If you have any questions about the agreement, please contact
Managing Director South East Asia