JKRS Marketing Sdn. Bhd. (hereinafter referred to as “JKRS”) and the Merchant shall collectively refer to as “Parties” and individually as “Party”, as the case may be.
Whereas JKRS provides online market place and opportunity for the sale of prepared food and/or non-prepared food and/or drink (hereinafter collectively referred to as "the Items") between the Customer and the Merchant through the websites and mobile applications and digital properties (hereinafter collectively referred to as “the Platforms”) provided by JKRS. Thereto, JKRS receives the order of the Customer through the Platforms (hereinafter referred to as “the Order”), transmit the Order via the Platforms, to the Merchant, and receives the payment of the Customer for the Order. The payment is received by JKRS and is transferred to the Merchant, after deducting the fees agreed upon by the Parties. It is understood that JKRS does not act on behalf of the customers (hereinafter referred to as “the Customer” or “the Customers”) to use the Platforms to order the Items. The actual contract for sale is directly between Merchant and the Customer, JKRS is not a party to that or any other contract between Merchant and the Customer and accepts no obligations in connection with any such contract.
Whereas, the contracts concluded with the Customers and the Merchant through the Platforms shall be based on the Terms and Conditions as accepted by the Customers and posted on the Platforms; and
|JKRS hereby provides the Services (as hereinafter defined) subject to and in accordance with the terms set out in the Agreements.
|In the event of any conflict or inconsistency between this Terms of Service and the Merchant Application Form (as hereinafter defined), the terms set out in the Terms of Service shall prevail to the extent of such inconsistency.
|“App” or “Mobile App” or “the Platforms” or “Site” or “Website” refers to the websites, mobile applications or digital properties operated directly or indirectly by JKRS, and/or for and on behalf of JKRS to facilitate online orders.
|“you” or “Merchant(s)” or “the Merchant(s)” refers to a legal entity or other commercial subject that is legally established and validly existing under the laws of Malaysia who shall supply or provide the Items and/or services through the Platforms.
|“the Customer” or “the Customers” refers to individuals who are accessing the Platforms (who have signed up as user of the Platforms) and placing order from the Platforms listed Merchants through the Platforms.
|“Merchant Data” refers to information collected from the Customers utilizing the Services provided under the Agreements, including but not limited to the person’s name, telephone number and e-mail address, and information submitted by the Merchant to the Platforms.
|“Merchant App” refers to the websites, mobile applications or digital properties operated directly or indirectly by JKRS, and/or for and on behalf of JKRS to facilitate Merchant for the sale of Items between the Customer and the Merchant.
|“Business Day(s)” refers to a day excluding Saturdays, Sundays, public holidays and announced ungazetted public holidays, on which banking and financial institutions are open for business in Malaysia for transaction of business of the nature required or contemplated by the Agreements.
|“Parties” refer to the Merchant and JKRS collectively, and “Party” means any of them.
|“Taxes” refers to sales and services tax, value added tax, and any and all other taxes, duties, levies, imposts, license duties, registration fees and any other charges or imposts howsoever described.
|“Merchant Registration Form” refers to the registration form which is integrated in the Merchant App registration process to be completed by Merchant for the services of the Platforms.
|“We” or “Our” or “Us” or “JKRS” refers to the Company, JKRS MARKETING SDN. BHD..
|“Transaction” or “Transactions” refers to any transaction between Merchant and the Customer(s) using the Platforms for the purchase of the Items from Merchant.
|“Charge Back" refers to a request that the Customer files directly with his or her debit or Credit Card Company or debit or credit card issuing bank to invalidate a payment.
|JKRS shall undertake, perform, provide and complete for and/or on behalf of the Merchant, the following services:
|Provides Merchants with licensed mobile software and software technology services, network technology services and other related services.
|Provides the opportunity for the Customers to make online orders from Merchants via the Platforms. The Customers could make reservation and orders for dine in or pick up.
|Warrants you to use all or legally operated, managing or collaborative content related mobile software and provide software technical services.
Helps you to solve the network technical problem that you encounter during the
Platforms operating process; for instance, provide technical guidance and
professional training for your use on the account registration and app overall
(hereinafter collectively referred to as “the Services”)
|In consideration of the Services as set forth above provided by JKRS, JKRS charges a fee for all successful transactions completed on the Platforms (hereinafter referred to as “the Transaction Fee”). The Transaction Fee is borne by the Merchant, and is calculated at the rate of 19.9% up to 22% of the Merchant’s Revenue, rounded up to the nearest cent. Merchant’s Revenue is the total amount paid by the Customer for the purchase of the Items on the Platforms. For the purposes of calculation of the Transaction Fee, the Merchant’s Revenue shall first deduct the Sales and Service Tax (hereinafter referred to as “SST”) (if applicable).
|MERCHANT’S RIGHTS AND OBLIGATIONS
|Merchant shall ensure that it is a legal person or other commercial entity legally established and subsisting under the laws of Malaysia and is legally and individually liable and has all the rights and capabilities necessary for the performance of the Agreements. At the same time, Merchant shall provide a photocopy of the seal of qualification, if a special trade involves a specific qualification or permit, Merchant should also provide the relevant special qualification or permit. The above information includes but not limited to SSM documents, business license, pre-permitting documents, description of business products, page information, copy of the information (including pictures, business introduction) and so on (please refer to the Merchant Application Form). The contents of the documents provided by the Merchant are guaranteed to be true and valid, the legal rights and interests of any third party are not infringed, and all the consequences and losses caused by the false or inaccurate information shall be borne by the Merchant. Merchant’s business name, address and contact information, permits and other information changes, businesses should be submitted to JKRS during the registration process. Due to the failure of the Merchant to notify in time, all losses caused to Merchant and JKRS shall be borne by Merchant.
|Merchant shall make personnel available to receive appropriate training from JKRS in order for the Merchant to operate the Merchant App and other necessary system, if any.
|Subject to Clause 7.1, Merchant will be entirely responsible for the listing of Items on the Platforms, warranty of purchase and the like. Merchant shall properly manage and ensure that relevant information such as the price and the details of the Items, inventory amount and terms and conditions for sales is updated on Merchant’s listing and shall not post inaccurate or misleading information. In the event of error or inaccurate information in the price and the details of the Items, inventory amount and terms and conditions for sales, Merchant shall be responsible for such error or inaccuracy.
|It is Merchant’s responsibility to ensure that their proposed Items complies with all laws and is allowed to be listed for sale in accordance with JKRS’ terms and policies before listing the items on the Platforms. Merchant is only allowed to list food and/or food-related Items on the Platforms.
|In the event of Merchant is in breach of Clause 5.4, the breach may subject the Merchant to a range of adverse actions, including but not limited to listing deletion, limits placed on account privileges, account suspension and termination and/or legal actions.
|The price of the Items will be determined by the Merchant at his/her own discretion. Merchant should not charge the Customers for any offline charges beyond the price set online. The prices that are uploaded by the Merchant on the Platforms shall be the final price (any extra charges, for instance: service charge and meal box/ takeaway fees should be all being included in the provided menus prices).
|Merchant shall provide JKRS with all of the menu information including but not limited to menu items, allergen information, minimum order value, promotions, discounts, opening hours, time need for preparation of the order (hereinafter collectively referred to as “the Menu Information”) for JKRS review and approval.
|Merchant shall ensure that it has all the necessary approvals, management systems and qualified personnel to provide the Items under the Agreements and performing dine in, pick up and reservation services provided by Merchants under the Agreements. The Items and services delivered to the Customers are of the same quality as the description on the page.
|The dine in, pick up and reservation services provided by the Merchant shall comply with the provisions of national laws, rules and regulations. As a result of the quality of commercial dine in, pick up and reservation or safety problems which caused the Customers’ complaints, claims, economic losses and other related consequences be borne by the Merchant, such as JKRS pay first based on the foregoing to the Customers, JKRS has the right to claim from the Merchant, the claim method includes, but is not limited to, directly deducting the amount of compensation in the Settlement Sum (as hereinafter defined) to the Merchant.
|When Merchant receives an order from the Customer, it should prioritize the order of the Customer and is responsible for timely delivery of the Items mentioned in the Order placed by the Customer. The Merchant shall also be responsible for appropriate packaging and methods for the process of pick up to ensure the Items’ safety, timely and pollution-free upon receiving by the Customer.
|JKRS will not be responsible for any warranty claims and any obligations of Merchant under the Consumer Protection Act 1999, and such warranty claims and obligations are the sole responsibility of Merchant.
Merchant promises that the following irregularities will not occur when using the
Platforms. All legal liabilities shall be borne by Merchant if any legal
consequences occur as a result of any of the following irregularities:
|Subject to Clause 7.1, Merchant can log in to Merchant App by using username and password, Merchant shall be responsible for the password security and the implementation of the notification and Merchant shall not transfer or disclose the Customer’s name and password to any third parties in any way.
|Bank account information provided by the Merchant must be accurate. Any changes should be promptly notified to JKRS; otherwise, the consequences such as delay of payment shall be borne by the Merchant.
|Merchants promise not to instigate or direct the Customers to abandon or stop using the Platforms and to trade directly with the Customer through other form of trading. Otherwise JKRS has the right to terminate the collaboration immediately and to request the Merchant to assume the liability for breach of contract in accordance with Clause 24 of this Terms of Service.
|Merchants agree that JKRS may cooperate with a third party in providing it with the relevant services, in which case JKRS reserves the right to transfer customers’ information if the third party agrees to assume the same responsibility for customer privacy protection of JKRS. In addition, JKRS reserves the right to analyze the entire merchant database and make commercial use of merchant database without revealing the privacy of individual Merchant.
|Merchants agree that JKRS has the right to inform them of the information by means of information push, publicity platform, SMS, telephone, e-mail, etc. Merchants allow JKRS to send commercial electronic messages to them.
|Merchants acknowledge and agree that it will be responsible for paying all taxes, customs and duties for the Items sold and JKRS cannot provide any legal or tax advice in this regard. As tax laws and regulations may change from time to time, Merchant is advised to seek professional advice if in doubt. If Merchant is required under the law of any jurisdiction outside Malaysia to deduct or withhold any sum as Taxes imposed on or in respect of any amount due or payable to JKRS, Merchant shall make such deduction or withholding as required and the amount payable to JKRS shall be increased by any such amount necessary to ensure that JKRS receives a net amount equal to the amount which JKRS would have received in the absence of any such deduction or withholding.
|Merchants shall upon accepting an order, prepare and fulfill such order without delay, pack it in accordance with JKRS’ standards and requirements as may be communicated from time to time, and at no less than the common standard of the Merchant, and transfer it to the Customer or the Customer’s delivery personnel, as applicable, with cutlery, if required.
In the event of the Customer Pick Up (namely, the Customer chooses to pick up
the Order from the Merchant), the Merchant shall:
|Merchants have the option to determine the number of order they may accept for every hour prior to the Customer place order on the Platforms. In the event the Customers have made payment for the Order, Merchants are not allowed to reject the Order.
|Merchant shall be solely responsible and liable for any and all of the Customer’s queries; claims and/or complaints in respect of the contents and quality of the Orders any consequential effects thereof.
|Merchant shall ensure at all time has available sufficient capacity (including staff, items and equipment) to process all orders received from the Platforms in accordance with the average delivery time provided to the Customers.
|Merchant shall ensure that all portions provided to the Customers shall be of the same size and quality as the portions provided by the Merchant to the Merchant’s Customers (as hereinafter defined).
|Merchant shall ensure that the prices and minimum order values offered to the Customers unless otherwise modified or adjusted by JKRS, are consistently identical to the prices offered to the customers of the Merchant who order directly from the Merchant or through other channels outside the Platforms (hereinafter referred to as “the Merchant’s Customers”).
|Merchant shall perform its obligations under the Agreements at all times in a competent, professional, and businesslike manner, within established industry standards, practices, and principles, and within the time deadlines set forth herein.
|If the Merchant is Halal certified, it must inform JKRS in writing of this certification and, where required, provide JKRS with a copy of the certification. If there are any changes to the Merchant’s status with regards to Halal certification, the same must be made known to JKRS within twenty-four (24) hours of any such changes.
If you are an approved Merchant of selling alcohol or alcohol related items
(hereinafter referred to as “Restricted Item Merchant”) on the Platforms, you
will be deemed to have consented to the terms and conditions of this Clause 5.28
when you sell alcohol or alcohol related items on the Platforms. You hereby
represent and warrant that:
|Merchants are not allowed to sell cigarette and/or vape and/or tobacco on the Platforms. Stern actions will be taken against the Merchants who are selling cigarette and/or vape and/or tobacco on the Platforms. JKRS will remove any listings containing cigarette and/or vape and/or tobacco once it is notified of such listings and actions will be taken against the Merchants including but not limited to limits placed on account privileges, account suspension and termination and/or legal actions.
|JKRS’ RIGHTS AND OBLIGATIONS
|JKRS provides Merchant with a network display of the Platforms as stipulated in the Agreements and collects the Transaction Fee from the Merchant according to the Agreements.
|JKRS will do related publicity and recommendations in the customer group to enhance the reputation of the Merchants. Merchant agrees to authorize JKRS to use his/her/its brand name, logo, name, trademark and other intellectual property rights.
|JKRS have the right to amend the Menu Information at its sole discretion, provided that no new or untrue information shall be made available, and shall not be required to inform the Merchant of such changes, provided that any such amendments are for purposes solely of enhancing the Customer’s experience.
|JKRS have the right to influence the prices for the Items on a case by case basis by offering discounts at JKRS’ sole cost, provided that in no case shall JKRS increase the prices provided by the Merchant.
|JKRS shall transfer to the Merchant, the Merchant’s Revenue minus the Transaction Fee and Amounts Payable (as hereinafter defined).
|JKRS shall inform the Merchant of any changes implemented to the ordering or payment procedures of JKRS at least two (2) days prior to the intended change taking place.
|JKRS have the right to refuse the onboarding of the Customers in cases where JKRS is not satisfied with the outcome of customer verification measures. Moreover, JKRS reserves the right to block customers abusing any promotions or in any other case of fraud-like attempts by the Customers on the Platforms and on orders to the Merchant.
|JKRS reserves the right to review the content and information that Merchant intends to publish on the Platforms, and may delete or amend it if necessary. JKRS reserves the right to delete or refuse publication of any content that does not comply with the laws, regulations or policies or any infringement of the legitimate rights and interests of third parties. However, both parties confirm that JKRS does not oblige for the aforesaid review and deletion and will not exempt Merchants from their obligations under the Agreements.
|JKRS has the right to request the Merchant to cooperate to resolve the complaint upon verification if any third-party files a complaint to JKRS. JKRS reserves the right to make offline deal without notice to the Merchant in case of non- compliance with laws, regulations, policies or infringe the legitimate rights and interests of third parties’ content.
|If there is any violation of the rules on the business scope of the Platforms or selling contraband to the Customers privately by the Merchant, JKRS shall have the right to penalize Merchant in accordance with relevant regulations and report it to the relevant administrative department.
|When the Customers cancel any order for dine in or pick up or reservation, JKRS should inform Merchant to cancel the corresponding dine in or pick up or reservation order items after receiving the cancellation request. Merchant should make the appropriate adjustments based on the notification sent by JKRS.
|If Merchant violates the obligations stipulated in Clause 5 of this Terms of Service, JKRS reserves the right to suspend the provision of services at any time and to remove the Menu Information of the said Merchant.
|Upon termination of the Services under the Agreements, JKRS reserves the right to delete the Menu Information published by the Merchant on the Platforms and to refuse to provide the Merchant with relevant information; JKRS reserves the right to store Merchant's qualification information, the Menu Information, Transaction records and other related information.
|COMMENCEMENT OF SERVICES
|The Merchant shall only be listed on the Platforms after the receipt and approval of all information requested by JKRS, including but not limited to the Menu Information, logo, and approved images, JKRS shall inform the Merchant, in writing (including via email at [email protected]), of the started date of the Services (hereinafter referred to as “the Commencement Date”), which notification shall be deemed a part of the Agreements.
|JKRS’ REFERRAL PROGRAM
|JKRS’ Referral Program ("hereinafter referred to as “the Referral Program”) is operated through the Platforms and governed by the Terms and Conditions as posted on the Platforms and any other policies, FAQs, guidelines pertaining to the Referral Program as may be in place from time to time.
|The Merchant who is listed on the Platforms would join the Referral Program by default provided the Merchant generate sales of the Items on the Platforms.
|In the event Merchant failed to generate sales of the Items on the Platforms, Merchant will be automatically disabled from joining the Referral Program until and unless the Merchant manage to generate sales of the Items on the Platforms thereafter.
|Members of the Referral Program (hereinafter referred to as “the Members”) are entitled to commission based on the rate to be updated by JKRS from time to time to reflect the business practice, structure, and procedures.
|A yearly statement will be issued by JKRS stating the yearly corresponding commission paid to the Members at the date set out in such statement shall constitute conclusive evidence of the fact of such matter or amount as against the Members. However, nothing in this Clause shall prevent JKRS from correcting any error or discrepancy in such statement and issuing a substitute statement.
|The Members shall receive monthly corresponding commissions on or before the 15th day of next month. If the 15th day is not a Business Day, the Members’ commission payout will be paid into the Member’s designated account within the next three (3) Business Days after the 15th day.
|JKRS shall have the right to temporarily suspend the Merchant from the Platforms, if in the reasonable opinion, the Merchant is in breach of any terms of the Agreements or may be negatively affecting JKRS’ business.
|Upon suspension of Merchant, the entitled corresponding commission in the ONE (1) month prior to the suspension of your Merchant account shall be remitted into your designated bank account on or before the 15th day of next month. If the 15th day is not a Business Day, the Members’ commission payout will be paid into your designated account within the next three (3) Business Days after the 15th day.
|FEES, PAYMENT AND COLLECTION FOR FUNDS
|Merchant hereby irrevocably authorizes JKRS to cause all funds received on behalf of Merchant by JKRS in connection with the Services to be deposited on its behalf in the JKRS’ banking accounts.
The Settlement Sum (as hereinafter defined) by calculating the amounts due in
respect of Transactions which are after deducting the following:
|The Transaction Fee due, refund(s), Charge Back and any other charges or amount due to JKRS under the Agreements, shall collectively be referred to as “the Amounts Payable”.
|“the Settlement Sum” refers to the payment made by JKRS on a weekly basis to the Merchant after deducting the Transaction Fee and Amounts Payable.
|A monthly statement will be issued by JKRS stating the Settlement Sum payable to Merchant by JKRS in connection with the Agreements at the date set out in such statement shall constitute conclusive evidence of the fact of such matter or amount as against Merchant. However, nothing in this Clause shall prevent JKRS from correcting any error or discrepancy in such statement and issuing a substitute statement.
|The remittance by JKRS to the Merchant shall be in Ringgit Malaysia (“RM” or “MYR”). All foreign currencies will be converted to RM/MYR if such a conversion is required. JKRS shall use the respective prevailing bank exchange rates as the conversation rates.
Merchant hereby agrees that JKRS and/or the bank has absolute discretion not to
remit all such funds received by JKRS and/or the bank to Merchant if JKRS
and/or the bank reasonably believe that any of the following events has or might
|The Parties agree and accept that the Merchant’s Revenue, the Transaction Fee, and the Amounts Payable will be calculated and shall be payable in the manner stated in the Agreements and that no other fees or charges shall apply between the Parties or towards the Customers. The Merchat specifically accepts that, if applicable, JKRS may set-off the Amounts Payable and Transaction Fee against the Merchant’s Revenue.
The Parties agree that the transfer of Settlement Sum by JKRS to the Merchant
shall be made in accordance with the following:
|JKRS shall transfer Settlement Sum to the Merchant’s provided bank account.
The Merchant shall have the right to appeal the Settlement Sum provided there is
discrepancy in the actual Settlement Sum paid by JKRS and the amount display
on the Merchant App. Merchant may appeal the Settlement Sum in accordance
with the following:-
|JKRS will use the Merchant Data only to provide the Services and professional services and only as permitted by the Agreements. Merchant acknowledges and agrees that in order to provide the Service, JKRS may modify and transfer the Merchant Data back to third-party services, all subject to such third party’s terms of service governing the Merchant Data. JKRS may retain an archival copy of Merchant Data. Merchant shall have sole responsibility for the accuracy, quality, and legality of the Merchant Data.
|Merchant agree to remove or anonymize all sensitive information before transferring Merchant Data to us, including, but not limited to, Personally Identifiable Information, and other sensitive information that Merchant collects from his/her/their agents, employees, and other parties. JKRS will not have any liability that may result from the disclosure of such information to us.
|JKRS shall employ commercially reasonable physical, administrative, and technical safeguards to secure Merchant Data on the Platforms from unauthorized use or disclosure.
|JKRS may monitor the performance and use of the Platforms by all of the Merchants, combine this data (the “Usage Data”) with other data (including Merchant Data), and use such combined data in an aggregate and anonymous manner. Merchant hereby agree that JKRS may collect, use, and publish such aggregate data for the purpose of creating aggregated and anonymized statistics regarding JKRS Merchant base. Examples of the use of such aggregate data include, but are not limited to, statistics aggregated across all of the Merchants on metrics such as size of data sets, the number of customers of the Platforms, revenue, number of transactions, and growth rates.
|The Merchant agrees that its name, address, a brief slogan (if applicable), and one or more images of the Merchant, including any logo or insignia, may be published on the Platforms and JKRS’ partner and affiliate platforms, in order for the Merchant to be identifiable as available on the Platforms.
|The Merchant permits JKRS, at JKRS’ cost, to advertise the Merchant on the Platforms, Facebook, Google, and any other social media or relevant offline and online marketing channels and specifically authorizes JKRS unlimited use of its intellectual property, including its logo, in doing so.
|The Merchant shall, where practicable, display and distribute official JKRS marketing materials such as, inter alia, business cards of JKRS, and links or QR codes to the Platforms, on a variety of online and offline tools, such as the Merchant’s website (if any) and any social media availed of by the Merchant, via a certificate picture and an “Order Now”. JKRS shall provide such material or images to produce such material. The Merchant shall not produce any marketing materials which made reference to the Platforms, without the consent of JKRS. The Merchant shall not bear any cost in respect of the official JKRS marketing materials.
|JKRS may provide the Merchant with offline marketing materials, including but not limited to stickers, and the Merchant obliges itself to display such offline marketing materials as instructed by JKRS.
|All Intellectual Property Rights of JKRS (hereinafter referred to as “the IP Rights) contained in and including the marketing materials mentioned in Clauses 12.3 and 12.4, and otherwise arising out of the Services shall remain the exclusive property of JKRS.
|It is hereby clarified that the Merchant does not have any rights whatsoever to use or avail of any IP Rights, including any domains or similar domain names, unless stated in the Agreements.
|It is agreed that neither Party shall obtain any other rights to the intellectual property of the other Party, except as stated in the Agreements.
|CANCELLATION AND REFUND POLICY
Cancellation of Items Deal
Once the Order is canceled after checking out, any promo code, point, voucher and any form of promotion used to purchase the deal by the Customer will be forfeited and the Customer will not be able to reuse it.
Cancellation of Reservation
Permitted cancellations of reservations may be made at least 60 minutes prior to the commencement time of the Customer’s reservation. Subject to JKRS’ approval, refund may be provided in the form of voucher.
Cancellation of Order
In the unlikely event that the Merchants prepare the wrong items, the Customers have the right to reject the wrong items and the Merchants have to reprepare the correct item or they will not be entitled for the payment of the Order. If the Merchant can only do a partial order (namely, a few items might be not available), the Merchant’s staff should inform the Customers or propose a replacement for missing items to them. The Customers have the right to refuse a partial order. JKRS is not responsible for wrong or partial order. The issue has to be settled directly with the Merchant.
|REPRESENTATIONS AND WARRANTIES
|Merchant warrants and undertakes to JKRS as follows:
|Merchant will remain duly organized and validly existing in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority to conduct its business, own its properties, and execute, deliver and perform its duties, obligations, undertakings, warranties and covenants under the Agreements.
|The execution, delivery and performance by Merchant of the Agreements have been duly authorized by all necessary corporate action, and do not and will not contravene any provision of Merchant’s constitutional documents or any indenture, contract or agreement to which Merchant is a party or by which it or its properties may be bound, to any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect applicable to Merchant.
|All actions, conditions and things required by any applicable law or regulation to be taken, fulfilled and done, including the obtaining of any necessary authorisations, approvals, permits, licences and consents, in order to enable Merchants lawfully to enter into, exercise its rights and perform and comply with its obligations under the Agreements, to ensure that those obligations are valid, legally binding and enforceable and to make the Agreements admissible in evidence in any court of competent jurisdiction have been taken, fulfilled and done in all material aspects.
|The Agreements is valid and binding on Merchant.
|In entering into the Agreements, Merchant has relied on its own judgment and has not relied upon any representations, warranties or statements made or purported to be made by JKRS (other than expressly set out in the Agreements).
|So far as Merchant is aware, no litigation, arbitration or administrative proceeding is current, pending or threatened to restrain the entry into, exercise of any of its rights under and/or performance or enforcement of or compliance with any of its obligations under the Agreements, and Merchant is not subject to any outstanding judgment, rule, order, statement of claim, injunction or decree of any court, governmental or regulatory authority or body acting in an arbitral or adjudicative capacity, that may affect its ability to perform its obligations under the Agreement.
|The Merchant represents, warrants, and undertakes that the use by JKRS of the name, logo, or image of the Merchant on the Platforms and on other marketing materials in accordance with Clause 12 of this Terms of Service and shall not infringe the intellectual property right of any third party.
|In the event of the Merchant is in breach of Clause 14.7, with the result that JKRS is obligated to pay royalty fees or any other payment (hereinafter referred to as “the Royalty Fee”) to any third party for the use of the name, logo, or image of, or used by, the Merchant, in order to provide the Services, and Parties agree that such Royalty Fee shall be passed on to the Merchant. The parties further agree that JKRS shall be allowed to enter into any agreement with the third party, on the subject matter of the Royalty Fee.
|Merchant agrees to indemnify, defend and hold harmless JKRS, and its shareholders, subsidiaries, affiliates, directors, officers, agents, co-branders or other partners, and employees (hereinafter collectively referred to as “the Indemnified Parties") from and against any and all claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, any other dispute resolution expenses) incurred by the Indemnified Parties arising out of or relating to: (a) any transaction made on the Platforms, or any dispute in relation to such Transaction; (b) the hosting, operation, management and/or administration of the Services by or on behalf of JKRS, (c) your violation or breach of any term of the Agreements or any policy or guidelines referenced herein, (d) your use or misuse of the Platforms, (d) your breach of any law or any rights of a third party, or (e) any content uploaded by you.
|EXCLUSION AND LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, in no event shall JKRS be
liable whether in contract, warranty, tort (including, without limitation,
negligence (whether active, passive or imputed), product liability, strict liability
or other theory), or other cause of action at law, in equity, by statute or
|Merchants acknowledge and agree that the only right with respect to any problems or dissatisfaction with the Platforms and/or the Services is to request for termination of your account and/or discontinue any use of the Services.
|Notwithstanding any provision on the Agreements, the maximum aggregate liability of JKRS to Merchant out of or in connection with the Agreements, whether based on breach of contract, statutory warranty or otherwise, for any single incident or series of related incidents shall in no event exceed the Transaction Fee received by JKRS from Merchant in the ONE (1) month prior to the event giving rise to such liability. No liability or responsibility is accepted by the JKRS for any injury, illness, damage, loss, accident, expense, or any other claim arising from involvement in any Items and/or services provided by Merchant.
|LIABILITY FOR BREACH OF CONTRACT
Merchants acknowledge and agree that violations of the Agreements may result
in a range of actions, including, without limitation, any or all of the following:
|Both parties of the Agreements shall keep the other party's business, operation, financial status and other confidential information strictly confidential and shall not disclose it to any third party in any form. If any party fails to fulfill its confidentiality obligations to any other party caused any loss, should bear the liability for compensation.
|Subjected to Clause 18.2, each Party shall, and shall ensure that its employees, keep confidential and shall not disclose to any person or use directly or indirectly for its own or any other person’s benefit (other than for the due performance by it of its obligations under the Agreements), any Confidential Information disclosed, made available or otherwise provided to that Party (hereinafter referred to as “the Receiving Party”) by or on behalf of any other Party (hereinafter referred to as “the Disclosing Party”).
Clause 18.1 shall not apply to the extent of:
|All notices, demands or other communications required or permitted to given or made hereunder shall be in writing and may be delivered personally or via e- mail or announced in the Merchant App or sent by prepaid registered post with recorded delivery to the intended recipient thereof at its address or e-mail address set out in the Merchant Application Form.
|Merchant shall not assign, transfer, subcontract or delegate any of its rights, interest or obligations under the Agreements or any part thereof without the prior written consent of JKRS. JKRS may at any time freely assign any of its rights, benefits and interest and/or transfer any of its obligations or liabilities arising out of the Agreements to an Associate by written notice to Merchant.
|JKRS shall have the right to amend any portion of this Terms of Service, provided that it shall inform the Merchant of such amendments in writing (including via email), which shall not be shorter than fourteen (14) days from date of notification.
|In the event of Merchant disagreeing with such amendments, it shall have the right to terminate the Agreements in accordance with Clause 24.1.1.
|It is specifically agreed that all amendments shall be effective between the Parties with effect from the date of notification by JKRS in accordance with Clause 21.1, without the need for any additional signatures or documentation, unless objected to in accordance with Clause 21.2.
|Nothing in the Agreements shall create or be deemed to create a partnership or joint venture between the Parties.
|No failure on the part of JKRS to exercise, and no delay on its part in exercising, any right or remedy under the Agreements will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in the Agreements are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).
|TERM AND TERMINATION
The Agreements shall commence on the Commencement Date and will continue
for an indefinite period, unless terminated earlier in accordance with Clause
24.1. The Agreements may be terminated:
Upon termination of the Agreements, for whatsoever reason:
|Merchant may terminate their account if they notify JKRS in writing (including via email at [email protected]) of their desire to do so. Notwithstanding any such termination, Merchant remain responsible and liable for any incomplete Transactions (whether commenced prior to or after such termination), and Merchant must contact JKRS after he or she has promptly and effectively carried out and completed all incomplete Transactions according to the Agreements. JKRS shall have no liability, and shall not be liable for any damages incurred due to the actions taken in accordance with this Clause. Merchant waive any and all claims based on any such action taken by JKRS.
|TIME OF ESSENCE
|Time shall be of the essence in the performance of the Parties’ obligations under the Agreements.
|THIRD PARTY RIGHTS
|All provisions of the Agreements apply equally to and are for the benefit of JKRS, its subsidiaries, any holding companies of JKRS, its (or their) affiliates and its (or their) third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf (save that the Agreements may be varied or rescinded without the consent of those parties). Subject to the previous sentence, no term of the Agreements is otherwise enforceable pursuant to the relevant local governing laws by any person who is not a party to it.
|In any event, the provisions of Clauses 14, 15 and 16 of this Terms of Service, together with those provisions that either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall survive termination of the Term or your use of the Platforms and/or the Services. In the event you use the Platforms or Service again, the provisions of the Term that then apply will govern your re-use of the Platforms or the Services.
|Neither Party shall be liable to the other for loss or damage resulting from delay or failure to perform the Agreements, or any terms hereunder, either in whole or in part, when the same is due to causes beyond its reasonable control, including but not limited to civil war, insurrections, strikes, riots, fires, floods, explosions, earthquakes, serious accidents or any acts of God, government regulations, epidemics, quarantine or labour trouble resulting in cessation, slowdown or interruption of work. In the event of the same, the Parties' obligations herein shall be extended for the periods of such circumstances only so far as they affect the performance of the Agreements.
|The Party affected shall as soon as possible notify the other Party in writing of the commencement and (if applicable) end of said circumstances.
|GOVERNING LAW AND JURISDICTION
|The Agreements shall be governed by, and construed in accordance with, the laws of Malaysia. Any dispute, controversy, claim or difference of any kind whatsoever arising between the Parties under the Agreements shall be referred to and finally resolved by arbitration administered by the Asian International Arbitration Centre in Kuala Lumpur, Malaysia in accordance with the Arbitration Rules of the Asian International Arbitration Centre (“AIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. There will be one (1) arbitrator and the language of the arbitration shall be English. Both Parties agree that Part III of the Arbitration Act 2005 shall not apply to the Agreements or the arbitration proceedings arising out of the Agreements.
Should you have further inquiries or concerns regarding the Terms & Conditions, do feel free to contact us via the following email [email protected].
Company Name: JKRS Marketing Sdn. Bhd.
Company Registration Number: 202001011521 (1367941-U)
Email: [email protected]
Contact: +6016-577 7659
Address: No. 10-1F, Lorong Mesra Permai 4, Taman Mesra Permai, Jalan Ong Yi How, 13400, Butterworth
Last Updated : 17 August 2022