THIS TERMS AND CONDITIONS ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND ECODE. PLEASE READ IT CAREFULLY.
BY SUBMITTING YOUR MERCHANT APPLICATION FORM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND FULLY UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE PRIVACY NOTICE AND ALL DOCUMENTS INCORPORATED BY REFERENCE UPON THE APPROVAL OF YOUR APPLICATION BY US, THE APPROVAL OF WHICH IS AT OUR SOLE AND ABSOLUTE DISCRETION.
THIS AGREEMENT IS MADE BETWEEN YOU AND ECODE.
In this Agreement, "Merchant", "you" and "your" refer to each merchant ("Merchant") and "Ecode", "we", "us" and "our" refer collectively to AXIATA DIGITAL ECODE SDN BHD (Company No. 1214970-T), a company incorporated in Malaysia with its registered office at Level 5, Corporate Headquarters, 9 Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur, Malaysia ("Ecode").
Merchant and Ecode are collectively referred to as “Parties” and separately as “Party”.
A. Ecode is a payment service provider operating and facilitating an e-wallet system, branded as Boost (“Boost”) which allows end customers to make payments using Boost for products or services bought from the Merchant.
B. Merchant wishes to accept payments from Boost Customers, for products or services purchased from the Merchant in accordance with this Agreement.
PARTIES HEREBY AGREE TO THE BELOW TERMS:
In this Agreement where the context so admits the following expressions shall have the meaning designated unless otherwise distinguished:
|“Agreement”||means this Merchant Terms and Conditions including any annexures thereof, the Privacy Notice and the Boost Merchant Application Form submitted by you/on your behalf;|
|“Bank Charges”||means any bank charges charged by the bank for the remittance of Settlement to the Merchant by Ecode;|
|“Boost Business App”||means the software application named as “Boost Business” or such other name as may be determined by Ecode from time to time which is downloaded by the Merchant;|
|“Boost Customer App”||means the software application named as “Boost” or such other name as may be determined by Ecode from time to time which is downloaded by the Customer;|
|“Boost Service Charges”||means:|
(a) the Setup Fees (if any); and
(b) the Transaction Fee;
|“Boost Services”||means the e-wallet payment solution and/or platform provided to the Merchant, which is developed and deployed by Ecode for the purposes of enabling payment transactions by the Customers to the Merchant. Boost Services shall include, but not limiting to, the collection of Customer Charges from the Customers and the remittance of Settlement to the Merchant;|
|“Business Day”||means a day (excluding Saturdays, Sundays and public holidays) on which banks in Kuala Lumpur and/or Selangor are open for general banking business;|
|“Campaign”||means campaigns/ activities/ initiatives which may be initiated by Ecode from time to time which are to be taken part by the Merchants;|
|“Commencement Date”||means the commencement date of Boost Services as Ecode may notify you via electronic mail or any other methods as determined by Ecode from time to time;|
|“Confidential Information”||means any documents, knowledge, data, or information of whatsoever nature disclosed to or acquired by the Merchant directly or indirectly from Ecode in connection with the Agreement, or otherwise including, but not limited to the following:(a) financial information;|
(b) technical information, including but not limited to research, development, procedures, data, designs, and technical know-how;
(c) business information, including but not limited to operations, planning, marketing interests, and services disclosed by Ecode to the government or regulatory body;
(d) personal information/data of any Customers, and Ecode’s staff; and
(e) all confidential or proprietary concepts, documentation, reports, lists, files, data, specifications, software, source code, object code, flow charts, databases, data files, inventions, information, know-how and trade secrets, whether or not patentable or copyrightable;
|“Charge Back”||means, where relevant, any disputed transactions between Boost and Merchant arising from the Campaigns, which may be charged ultimately to the Merchants by way of Deduction;|
|“Customer”||means any person holding a valid Boost wallet and purchases Services or Products from the Merchant and makes payment for the same using his Boost wallet;|
|“Customer Charge”||means the sale price of the Product and/or Service purchased or availed by the Customer plus all other taxes, duties, costs, charges and expenses in respect of the Product and/or Service that are to be charged to the Customer’s Boost wallet;|
(a) Boost Service Charges;
(c) Charge Back (if applicable), and any fines or fees passed on to Ecode by the financial institution in respect of the Transactions;
(d) any amounts reasonably required to cover potential or expected Refunds or Charge Back (if applicable);
(e) Bank Charges (if any);
(f) Goods and Services tax or any other tax in similar nature (if applicable) and
(g) any other charges or amounts due to Ecode under this Agreement or otherwise;
|“Intellectual Property Rights”||means all of the following:|
(a) trademarks (including trade dress), service marks, logos or trade names, whether registered or unregistered, together with the goodwill associated with any of the foregoing, and all registrations, renewals and applications for registration thereof;
(b) those rights existing under the copyright laws for those works subject to the copyright laws and copyright registrations and applications for registration thereof, including all renewals and extensions thereof;
(c) rights in trade secrets, confidential business information and other proprietary information (including concepts, ideas, designs, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, drawings, models, tools, algorithms, Software architectures, methods, know-how, technical data and databases, discoveries, inventions, research and development, formulas, modifications, extensions, improvements and other proprietary content);
(d) rights in computer software programs, including but not limited to application software, system software, firmware, middleware and mobile digital applications, including all source code, object code, and documentation related thereto, in any and all forms and media;
(e) rights in domain names, domain name registrations and web pages; and
(f) all other intellectual property rights in any and all jurisdictions throughout the world;
|“Merchant’s Designated Bank Account”||means the designated bank account of the Merchant as specified by the Merchant during its registration process with Ecode. For the avoidance of doubt, if the Merchant is a body corporate, the designated bank account shall be in the name of such entity. If the Merchant is an individual, the designated bank account shall be in the name of such individual.|
|“Merchant Application Form”||means the binding application form filled up and submitted by the Merchant/Ecode on behalf of the Merchant, offline or online;|
|“Personal Information”||means personal data as defined in Personal Data Protection Act 2010;|
|“Privacy Notice”||means the privacy notice applicable to the Personal Information of Merchants and/or the personnels of the Merchants which can be found at www.myboost.com.my/business/privacy-policy;|
|“Product”||means a tangible or intangible commodity/product manufactured, marketed, distributed and/or sold by the Merchant, to the Customer(s), the payment for which is to be made through the Customer’s Boost wallet;|
|“Refund”||means a request made by a Customer to reverse a Transaction under Clause 6 hereof;|
|“Settlement”||means the Customer Charge less the Deductions;|
|“Service”||means any service that Merchant offers to provide and that is availed of by the Customer, the payment for which is to be made through the Customers’ Boost wallet;|
|“Setup Fee”||means a one-off, non-recurring and non refundable fee payable by the Merchant to Ecode at the time of signing this Agreement or such other time prior to the commencement of the Boost Services in the amounts set forth in the Appendix of Merchant Application Form or otherwise agreed by the Parties;|
|“Term”||means the term as stated in the Appendix of the Merchant Application Form as approved by us or otherwise agreed by the Parties;|
|“Transaction”||means every demand of the Customer to the Merchant, which results in the supply of Product or provision of Service by Merchant to the Customer|
|“Transaction Fee”||means a fee payable by the Merchant to Ecode for each Transaction based on the formula set forth in the Appendix of Merchant Application Form or otherwise agreed by the Parties.|
In this Agreement, unless the context otherwise requires:
(a) reference to any legislation or provisions shall include any statutory modification and re-enactment of any legislative provisions substituted for and all legislation and statutory instruments issued by such legislation or provisions;
(b) references to any document or agreement in this Agreement (including the Agreement) shall be deemed to include references to such document or agreement as may be amended, novated, supplemented, varied or replaced from time to time;
(c) references to clauses shall be read in the case of sub-clauses, paragraph and sub-paragraph as being reference to sub-clauses, paragraph and sub-paragraph in this Agreement as may be appropriate;
(d) references to any Party to this Agreement or any other document or agreement shall include its successor-in title or permitted assigns;
(e) heading to clauses are for convenience only and shall not affect the interpretation thereof;
(f) words denoting the singular number shall include the plural and vice versa;
(g) words denoting individuals shall include corporations and vice versa;
(h) words denoting a gender shall include all genders;
(i) the Recitals and/or schedules attached hereto shall be construed as essential part of this Agreement; and
(j) no rule of construction and/or interpretation applies to the disadvantage and/or detriment of the Party having control and/or being responsible for the preparation of this Agreement.
This Agreement shall commence on the Commencement Date and continue to be in full force and effect until the expiry of the Term unless otherwise earlier terminated in accordance with this Agreement.
3.1 Provisions of Boost Services
(a) In consideration of the mutual promises and undertakings, Ecode agrees to provide Boost Services to the Merchant in accordance with this Agreement from the Commencement Date on an as is basis.
(b) Upon the creation of a Merchant’s Boost wallet by the Merchant, Ecode shall make available to the Merchant the Boost Business App and a login name and password will be generated, in order to enable the Merchant to: accept payments for the Products and/or Services sold and/or provided by the Merchant by using the Boost Services.
(c) Ecode may provide on loan and install the necessary equipment and devices (such as a terminal or smartphone) to enable the Merchant to carry out the Transactions. The ownership and title to the said equipment and devices shall at all times remain with Ecode/ Ecode’s vendor. The Merchant shall only use the equipment and devices for the purposes of carrying out the Transaction and for no other purposes. If the equipment and devices are provided, the Merchant shall: –
(i) ensure that Ecode (or its representatives/ agents) has reasonable access to any of the equipment and devices, including but not limited to the right of Ecode (or its representatives/ agents) to enter into any of the premises of the Merchant where the equipment and devices are placed to provide installation, maintenance service, repairs, upgrades and/or where necessary, remove and replace the equipment and devices;
(ii) ensure the physical security of the equipment and devices loaned to the Merchant;
(iii) report any damage, lost and/or theft of equipment and devices to Ecode and in case of lost or theft of any of the equipment and devices, the Merchant shall co-operate and assist in making a report with the police and shall repay/compensate Ecode for such damage, lost or theft based on the market rate when such equipment or device is provided to the Merchant or at a price that is acceptable to Ecode;
(iv) ensure compliance with all relevant laws set by the government and/or local authorities with respect of the use of the equipment and devices;
(v) provide electricity and/or power connections for equipment and devices to operate;
(vi) not give away, loan, sell, pledge, mortgage and/or in anyway dispose the equipment and devices;
(vii) not affix, paint or otherwise exhibit on the exterior of the equipment and devices or any part thereof, any stickers, name plates, marks, signboards, placard, posters and/or advertisement or anything whatsoever without the prior written consent of Ecode; not tamper, modify and/or alter the equipment and devices (including the software and firmware therein) without the prior written consent of Ecode; and
(viii) not do or permit or suffer to be done anything to the equipment and devices which would invalidate the policy of any insurance on the equipment and devices or increase the premium for such insurance beyond the existing risk
In this respect, the Merchant shall fully indemnify Ecode against all liabilities, losses, damages, costs and/or expenses suffered or incurred by Ecode arising from or in connection with the Merchant’s failure to comply with any of the obligations set out in this Clause 3.1(c).
3.2 Payment Through Boost
Merchant acknowledges that Ecode acts as an intermediary and enables the Customers to make payment, by using the Customers’ Boost wallet. Customer Charges to be charged by Merchant shall be inclusive of all taxes and miscellaneous charges and shall be uniform to all Customers. All Transaction shall be drawn in Ringgit Malaysia only.
Ecode may undertake scheduled maintenance and/or emergency maintenance of the Boost Business App from time to time and Ecode will use reasonable endeavour to notify the Merchant of the same. Ecode shall not be liable for any losses incurred by the Merchant arising from Ecode’s performance of maintenance under this Clause 3.3.
3.4 No Warranties of Merchantability and Fitness of Use
Ecode disclaims all warranties, express or implied, written or oral, including but not limited to warranties:-
(a) of merchantability and/or fitness for a particular purpose; and
(b) that Boost Service and Boost Apps will be available at all times and that it would be uninterrupted and virus/malware/error free.
4.1 Subject to Clauses 4 and 5, Ecode shall remit the Settlement to the Merchant on the Settlement time period (“Settlement Date”) as set forth in the Merchant Application Form or otherwise agreed by the Parties. For the avoidance of doubt, Ecode shall remit the Settlement on the Settlement Date however Ecode makes no guarantee regarding the actual date of receipt of such Settlement by the Merchant. Ecode may together with each Settlement to the Merchant provide a report (“Settlement Report”) containing a breakdown of Settlement for the relevant Transactions undertaken.
4.2 In the event that the value of the Deductions exceed the value of all Customer Charges falling due for Settlement on the Settlement Date, the resulting shortfall may be held over by Ecode for deduction against the following Settlement when it shall be deducted from that Settlement together with any interest due. However, Ecode reserves the right at any time to require payment (including by directly debiting Merchant’s Boost wallet) of all or part of such shortfall as Ecode may determine.
4.3 Ecode will remit all Settlement to the Merchant’s Designated Bank in Malaysia Ringgit (RM) by wire transfer or such other method preferred by Ecode.
4.4 Ecode may hold back from the Settlement any amounts reasonably required to cover potential or expected Refunds or Charge Back (if applicable).
4.5 With respect to each Settlement made, the Merchant shall reconcile its sales report against the Settlement Report (where the same is provided by Ecode) for the relevant Transactions. If the Merchant discovers any discrepancy in the Settlement by Ecode, the Merchant shall within fourteen (14) days from the Settlement Date notify Ecode of such discrepancy together with the relevant supporting documents evidencing the discrepancy, failing which the Merchant waives its rights to raise any dispute and is deemed to have accepted the Settlement made by Ecode as correct. Where the Merchant notifies Ecode of a discrepancy within the timelines stated herein, the Parties shall resolve the discrepancies in good faith as soon as practicable.
4.5A Should there is any dispute in relation to the Settlement or any payment between the Parties, Ecode shall only remit the undisputed amount or part thereof to the Merchant prior to the resolution of such dispute.
4.6 Both Parties shall bear their own cost of any obligation imposed upon them under the applicable law with respect to any taxes or similar items in connection with this Agreement.
4.7 It shall be the Merchant’s responsibility to ensure that the details of the Merchant’s Designated Bank provided to Ecode remain accurate and correct throughout the Term of this Agreement and should keep Ecode updated if there are any changes. Ecode shall not be held liable should the Settlement or any monies are being remitted to a wrong account if the Merchant fails to comply with this clause.
5.1 The Merchant shall provide the Products and/or Services to the Customer only upon confirmation of the Transaction by Ecode.
5.2 Ecode shall not be responsible for any Transactions that have not been confirmed by Ecode.
5.3 All disputed Transaction shall be the sole liability of the Merchant.
5.4 Ecode shall not under any obligation or responsibility to investigate any disputed Transaction.
5.5 Where Ecode is notified of any invalid or disputed Transactions, Ecode will notify the Merchant of the same by email, fax or letter and where possible accompanied by an explanation of the reason for it. Ecode will classify the Transaction as disputed and debit it back to Merchant.
5.6 The Merchant agrees to investigate disputed Transactions and take all reasonable steps to resolve disputes with Customers within fourteen (14) days and follow the procedures for handling disputed Transactions which Ecode advises from time to time. Ecode shall have the right to suspend the processing of such Transaction or withhold the Settlement to the Merchant of the amount of such Transaction until the satisfactory completion of any investigation.
5.7 A Transaction may be regarded as invalid by Ecode if:
(a) the Transaction was declined for any reason but the same was processed by the Merchant;
(b) it is for any reason incomplete unlawful and unenforceable;
(c) the Transaction found to be a duplicate transaction; or
(d) it is not processed as per the Boost’s operating guide as per Appendix A.
5.8 The Merchant shall resolve any disputes, claims or complaints the Merchant may have received from the Customer in respect of any Transaction using Boost. Ecode shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and the Customer in relation to the Transaction including but not limited to the quality of the Product and/or Services, overcharging or late delivery unless it can be reasonably shown by the Merchant that such dispute arose, directly or indirectly, from the gross negligence, fraudulent act, material default or breach, material errors and/or omissions by Ecode in the provision of Boost Service under this Agreement.
6.1 Where the Customer made payment via the Boost Customer App and thereafter request for a refund. If the Merchant agrees to such refund:-
(a) on the same day when the relevant Transaction took place (the “Transaction Day”), the Merchant shall take necessary steps to void/ cancel the Transaction through the relevant feature available on Boost Business App and make sure that such cancellation is relayed to Ecode on the same day. The Merchant shall then be responsible for the refund to such Customer;
(b) after the Transaction Day, the Merchant shall manually refund the Customer via cash ot voucher or such other way as may be determined by Ecode. For the avoidance of doubt, Ecode is entitled to retain the relevant Boost Service Charges and Bank Charges.
6.2 Ecode shall not be responsible in any manner whatsoever for any losses, claims, damages, costs and expenses incurred by the Customer and/or the Merchant arising from the Refund.
6.3 Ecode shall not be responsible for any abuse or misuse of the “void/cancel” function made available to the Merchant on Boost Business App. The Merchant shall keep Ecode fully indemnified from all liability, losses, damages, cost and expense incurred by Ecode arising out of or in connection with the misuse of the same.
7.1 Ecode may initiate Campaigns from time to time which are to be taken part by the Merchants. The payment terms under these Campaigns shall be agreed by the Parties from time to time. Ecode reserves the right to Charge Back should Ecode is of the opinion that Ecode has overpaid the Merchant for any reason whatsoever.
8.1 Otherwise as expressly stated in this Agreement, in no event shall either Party be liable to the other Party or any other third party for loss of profits, loss of business, exemplary, incidental, indirect, special, punitive or consequential damages of any kind arising out of this Agreement.
8.2 Ecode shall not be liable to the Merchant in contract, tort or otherwise howsoever arising out of or in connection with this Agreement save and except for the Settlement which is due and payable to the Merchant in accordance with this Agreement.
8.3 No terms or condition of this Agreement shall benefit or create any right or cause of action in or on behalf of any person or entity other than Ecode and the Merchant. The provisions of this paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense or losses whether in contract, statute, tort (including, without limitation, negligence), or otherwise.
9.1 The Merchant shall fully indemnify Ecode for all losses, damages, claims, cost and expenses in respect of or in connection with any and all actions, suits, claims, demands and/or proceedings brought against Ecode with respect to, in connection with or resulting from:
(a) breach or non-performance by the Merchant of any of its undertakings, warranties, covenants, declarations or obligations under this Agreement; and
(b) any claim brought by a Customer with respect to the Products and/or Services provided by the Merchant (including Refund).
10.1 The Merchant shall not engage in any of the following behaviour:
(a) attempts to tamper, hack, reverse-engineer, modify or otherwise corrupt the security or functionality of Ecode’s platform or the Boost Business App;
(b) using the Boost Service for money laundering activities;
(c) using the Boost Service for any unlawful, illegal and/or immoral activities and/or purposes, including but not limited to violation of the laws of Malaysia and/or Bank Negara Malaysia’s rules; and
(d) manipulate or exploit Ecode’s promotional campaigns/ activities or other Boost Services/ Boost Business App/ Boost Customer App (where applicable) in anyway which Boost may deem as improper, irregular or dishonest.
11.1 The Merchant shall honour all the promotional/advertising schemes which may be introduced by Ecode.
11.2 Unless otherwise expressly specified by Ecode in writing, the Merchant shall procure all marketing and promotional materials directly from Ecode.
11.3 In the event the Merchant decides to produce its own materials in promoting Boost Services, all uses of Ecode’s Intellectual Property Rights, including without limitation its logo and brand name shall be subject to Axiata’s written approval. The Merchant shall send copies of all materials which contain uses of Axiata’s Intellectual Property Rights to Axiata in advance of their use at the e-mail address indicated in this Agreement.
11.4 Upon Ecode’s request, the Merchant shall display prominently at its premises, Ecode’s brochures and/or other publicity material provided to it by Ecode.
11.5 Ecode or its agents shall at all reasonable times have the right to entry and inspect the retail outlet or trading premises of the Merchant (if applicable).
11.6 The Merchant shall participate in initiatives that Ecode may announce from time to time, such as new customer acquisition activities including those assisted by a promoter funded by Ecode, in customer promotional campaigns, in Merchant-get-Merchant campaign and other forms of Merchant loyalty programs etc.
11.7 The Merchant hereby agrees that Ecode may from time to time, display the Merchant’s logo, branding (including any marks and/or images available on public domains) on its platform without further approval from the Merchant and the Merchant shall indemnify Ecode against all actions, proceedings, costs, claims, demands, loss, damages, liabilities and expenses howsoever incurred, suffered, paid or payable by Ecode in anyway arising from such usage.
12.1 Merchant hereby covenants, represents and warrants that:
(a) it has the full authority and power to enter into, execute and deliver this Agreement and to carry out and perform the services contemplated under this Agreement;
(b) the execution by Merchant of this Agreement constitutes legal, valid and binding obligations on the Merchant;
(c) the execution, delivery and performance of this Agreement will not violate any order, judgment or decree against or binding upon Merchant;
(d) it shall comply with all applicable consumer, personal data protection and other laws and regulations with respect to:
(i) its use of Boost Service;
(ii) its dealings with the Customers; and
(iii) its processing, use and disclosure of the Customers’ data;
(e) it shall ensure the safety and confidentiality of its login name and password and shall keep Ecode fully indemnified from all liability, losses, damages, cost and expense incurred by Ecode arising out of or in connection with the misuse of the same. The Merchant shall immediately notify Ecode upon learning of any unauthorized use of its login name and/or password;
(f) it shall observes the guidelines, procedure or such other updates as provided by Ecode from time to time during the term of this Agreement;
(g) it shall install any updates, fixes and patches whenever they are made available or notified of its availability by Ecode;
(h) it has the full right and/or authority to offer the applicable Products and/or Services and shall at its own cost obtain and maintain the necessary licenses and approvals from the government or any regulatory body for the provision of such Products and/or Services and performance of its obligations under this Agreement;
(i) it shall at all times, display the logo and other such trademarks of Ecode that may be mutually agreed at the retail outlet or trading platform of the Merchant;
(j) it shall provide Ecode the information as required by Ecode at the time it desires to become the Merchant of Ecode;
(k) the products and services as detailed as Prohibited items in Appendix B and such other prohibited items which Ecode may notify from time to time shall not be sold by the Merchant;
(l) it shall be solely responsible for all Customer service issues relating to the Transaction, Products and Services sold by the Merchant, including but not limited to Customer Charge, order fulfilment, order returns, refunds, exchanges and adjustments, rebates, functionality and warranty, technical support, customer complaints and feedback concerning experiences with its personnel, policies or processes and the Merchant shall bear any and all expenses and/or costs relating thereto;
(m) it shall not conduct any unlawful or illegal transactions using Boost Services;
(n) it shall immediately report to Ecode upon the discovery of any fraud, theft, loss, unauthorized usage or any other occurrence of unlawful or illegal acts in relation Boost Service, Boost Business App/ Boost Customer App and/or their respective use. The Merchant agrees to lodge a police report whenever instructed by Ecode and to give Ecode a certified copy of such report;
(o) it shall cooperate with Ecode and provide all Transaction related details required by any government or regulatory body;
(p) other than the equipment and terminals provided by Ecode, it shall be responsible for all other equipment (including upgrades and modifications required) necessary to use the Boost Service and Boost Business Apps and to carry out the Transactions, and also for the security and integrity of all information and data transmitted, disclosed and/or obtained through the use of the Boost Service and/or Boost Business Apps; it shall not:
(i) discriminate the Boost Business App against other modes of payment;
(ii) discriminate Customers seeking to make payment using the Boost Customer Apps against Customers using other modes of payment; and
(iii) impose any restrictions and/or conditions on the use of Boost Customer/ Business App as a mode of payment other than that approved or prescribed by Ecode;
(q) it shall not charge the Customer any additional fee or charges in addition to the Customer Charges other than goods and service tax imposed by law;
(r) it shall keep proper account and correct copies of all documents/records relating to the Transactions and Ecode shall be allowed at any reasonable time to inspect or take copies of all such documents and shall preserve such documents and records for a period of at least two years from the transaction date;
(s) it shall not use the Boost Service and/or Boost Business App in any manner and/or engage in any activities which is prejudicial to Ecode and/or in any manner which would bring disrepute to Ecode, all of which shall be determined based on Ecode’s opinion;
(t) it shall ensure that the account registered by the Merchant on Boost Business App remains personal to itself and it shall not register an account on behalf of any third party or in anyway transfer/assign the account to any third party without Ecode’s prior written consent;
(u) it shall be solely responsible for the outlets and staffs’ Boost Business App account management and Ecode shall not be responsible for any consequences arising from the abuse or misuse of the QR codes; and
(v) it shall not use the Boost Services and/or Boost Business App in any manner dishonestly or in bad faith or with malicious intent, in Ecode’s opinion.
13.1 All Confidential Information disclosed or communicated by Ecode to the Merchant or obtained by the Merchant from Ecode in connection with this Agreement including but not limited to the business and operations of Ecode and the terms of this Agreement shall be treated as Confidential Information unless the information:-
(a) is or becomes publicly available through no fault of the Merchant;
(b) which the Merchant can prove was in its possession or known to it prior to its receipt from Ecode;
(c) is or was rightfully received by the Merchant from a third party without a duty of confidentiality being owed by the Merchant to the third party, except where the Merchant has knowledge that the third party has obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to Ecode; or
(d) was independently developed by the Merchant without the use of the Confidential Information.
13.2 The Confidential Information shall be held in strict confidence by the Merchant, using no lesser security measures and degree of care as it uses to protect its own Confidential Information. In any event, the security measures and the degree of care it uses shall, as a minimum, comply with the standards imposed by the applicable laws including the Personal Data Protection Act 2010. The Merchant shall further ensure that the Confidential Information is secured from unauthorised access from internal and external parties and that all Confidential Information used, stored and/or processed shall be free from virus, malware or other malicious codes.
13.3 The Confidential Information shall only be used, copied, reproduced, distributed or disclosed by the Merchant strictly for the purposes contemplated under this Agreement only. The Confidential Information may, however, be disclosed:
(a) to its employees or its legal and financial advisers strictly on a need to know basis to implement or perform this Agreement only provided its employees and advisers are subject to and maintain the confidentiality obligation under this Agreement and the Merchant shall indemnify Ecode for any damages, losses, cost and expenses suffered or incurred by Ecode arising out of or in connection with any breaches thereof by its employees and advisers; and/or
(b) if its disclosure becomes mandatory pursuant to any laws or any acts of authority or rules of any stock exchange, or is for the purposes of court proceedings.
13.4 Where the Merchant is required to disclose any Confidential Information pursuant to any laws or any acts of authority or rules of any stock exchange, or is for the purposes of court proceedings, the Merchant:
(a) shall where practicable and lawful give twenty four (24) hours’ notice to Ecode that it is required to disclose the Confidential Information so that Ecode has an opportunity to protect the confidentiality of its Confidential Information; and
(b) provides Ecode with a copy of the Confidential Information that the Merchant is to disclose.
13.5 Upon the expiry or termination of this Agreement, the Merchant shall promptly return to Ecode or, where instructed, destroy Confidential Information of Ecode and immediately cease using all Confidential Information. Where required by Ecode, the Merchant shall provide to Ecode a written undertaking confirming that it has fully complied with the requirements of this Clause 13.5 and that it is not in possession or control of any of Ecode’s Confidential Information.
13.6 The Merchant shall ensure that each of its personnel strictly complies with the obligations under this Clause 13
13.7 All ownership and Intellectual Property Rights in Ecode’s Confidential Information shall remain vested in Ecode.
13.8 The Parties therefore agree that the Ecode shall be entitled to obtain injunctive relief, or any other restraining or any other appropriate order against the Merchant in the event of any threat or disclosure of Confidential Information.
13.9 The obligations of the Merchant in this Clause 13 shall survive for a period of five (5) years after the termination or expiry of this Agreement.
14.1 The Merchant acknowledges that the copyright, designs, trademarks and other Intellectual Property Rights comprised in the information, text, graphics, scripts, software, technology, music, sound, photograph, logos, widgets, documents and/or any materials provided by Ecode (“Ecode’s IPR”) are the sole and exclusive property of Ecode and/or its licensors.
14.2 The Merchant may utilise the Ecode’s IPR strictly in accordance with the instruction and guidelines of Ecode issued and/or communicated by Ecode from time to time and solely for the activities contemplated in this Agreement only.
14.3 The Merchant further agrees and undertakes that save as expressly permitted in this Agreement it shall not without Ecode’s prior written consent:
(a) reproduce, copy, reverse compile, adapt, modify, distribute, commercially exploit, display, broadcast, hyperlink or transmit in any manner or by any means or store in an information retrieval system any part of Ecode’s IPR; and
(b) create or use derivative works from Ecode’s IPR.
15.1 Merchant shall always endeavour to keep all data related to the Transaction under this Agreement secure and will follow industry practice and any guidelines issued by any regulatory authority from time to time. As part of data security obligations Merchant shall not store Boost wallet authentication information (PIN/ OTP). Apart to fulfill its audit purposes, the Merchant acknowledges and agrees not to store the Boost wallet credentials of the Customer in any form including without limitation by creating logs.
16.1 Ecode shall be entitled, without any liability to the Merchant, to immediately suspend the Boost Service (including withholding any Settlement to the Merchant) by written notice to the Merchant if, in the sole and absolute opinion of Ecode that:
(a) the Merchant has breached any warranty, terms and conditions of this Agreement; and
(b) any of the events stipulated in Clause 17.1(b)(i) to (iv) and/or in Clause 17.1(c) occurs to or is committed by the Merchant.
16.2 The issuance of such suspension notice shall not in any way prejudice or prevent Ecode from exercising its rights to terminate this Agreement under Clause 17 with respect to the same breach and/or event.
17.1 Without prejudice to any other rights of the Parties under this Agreement or at law, this Agreement may be terminated:
(a) immediately by either Party without any liability whatsoever to Ecode where:
(i) the provision of the Boost Services or any part thereof shall become unlawful under any laws in Malaysia; or
(ii) Ecode’s license and/or approval under the relevant legislation which is necessary to provide the Boost Service is suspended, revoked or terminated and another license of that type is not immediately granted or issued to Ecode; or
(b) by a Party by giving written notice where:
(i) the other Party is in material breach of any warranty, terms and conditions of this Agreement and such breach is incapable of being remedied or where capable of remedy, is not remedied within thirty (30) days of receipt of notice in writing by the non defaulting Party specifying the nature of the breach;
(ii) an order is made or an effective resolution is passed for the reconstruction, amalgamation of the other Party under Sections 366 – 368 the Companies Act 2016 or any other similar action or proceeding under any other law and the order or resolution is not withdrawn, revoked or annulled within a period of ninety (90) days from the date of the order or resolution;
(iii) an order is made or an effective resolution is passed for winding up or dissolution of the other Party and the order or resolution is not withdrawn, revoked or annulled within a period of ninety (90) days from the date of the order or resolution;
(iv) a receiver, receiver and manager, official manager, provisional liquidator, liquidator, or like official is appointed over the whole or a substantial part of the undertaking and property of the other Party and such appointment is not withdrawn, revoked or annulled within a period of ninety (90) days from the date of such appointment;
(v) a holder of an encumbrance takes possession of the whole or any substantial part of the undertaking and property of the other Party and such action is not withdrawn, invalidated or reversed within a period of ninety (90) days from the date of such appointment; or
(vi) the other Party ceases its business; or
(c) by Ecode by giving written notice where:
(i) the Merchant is unable to justify the occurrence of a downtime and not being able to resolve the problem within reasonable timeline stipulated by Ecode;
(ii) there is a change in the management, constitution, nature or control of the Merchant’s business from that existing on the date of this Agreement; or
(iii) the Merchant is in breach of any acts, statutes, laws, by-laws, rules and/or regulations imposed by any party, regulatory body, or government agency.
17.2 Notwithstanding anything to the contrary, Ecode may terminate this Agreement, without any liability whatsoever to the Merchant, and without assigning any reason whatsoever, by giving thirty (30) days written notice to the Merchant.
18.1 The termination or expiry of this Agreement, in whole or in part, does not operate as a waiver of any breach by a Party of any of its provisions and is without prejudice to any rights, liabilities or obligations of any Party which have accrued up to the date of termination or expiry including the right of indemnity.
18.2 On termination or expiry of this Agreement by either Party for any reason:
(a) All amounts accrued and payable shall become immediately due and payable. Ecode shall remit all monies in the Merchant’s Boost wallet less any monies, damages, cost and expenses due to Ecode to Merchant’s Designated Bank Account.
(b) The Merchant shall forthwith return to the Ecode such equipment, originals and any copy of any software, books, documents, records, papers and materials of Ecode in its possession.
(c) The Merchant shall immediately cease holding itself out as a Merchant to Ecode and shall immediately cease using the Boost Service, Ecode’s IPR and remove all signs, names, insignia, advertisements and/or any other material which identifies it as part of the network of Ecode and shall return to Ecode all literature and other material relating to Ecode in its possession.
19.1 No revision, modification and/or change to the scope of the Boost Service and any charges and/or fees payable under this Agreement shall take effect until the same has first been mutually agreed in writing by the Parties.
19.2 With respect to any other changes to the Agreement, the Merchant agrees that Ecode may revise, modify and/or change the same with prior written notice to the Merchant. Any such revision, modification or change will be binding and effective either, at Ecode’s sole discretion:,
(a) immediately upon posting of the revised Agreement on the Boost’s website or upon electronic or written notification to the Merchant, where such revision or change is to comply with legal or regulatory requirements; or
(b) twenty one (21) days after posting of the revised Agreement on the Boost’s Website, or upon electronic or written notification to the Merchant, in other cases.
19.3 The Merchant agrees to periodically review the Boost’s Website, including the current version of this Agreement available on the Boost’s Website, to be aware of any such revisions.
19.4 If the Merchant does not agree with any revision to the Agreement, the Merchant may terminate this Agreement at any time by providing Ecode with notice in writing.
19.5 Such notice of termination will be effective on receipt and processing by Ecode.
19.6 Except as otherwise provided in this Agreement, in the event the Merchant terminates this Agreement, any fees paid by the Merchant are non-refundable.
19.7 By continuing to use Boost Services after any revision to this Agreement, the Merchant agrees to abide by and be bound by any such revisions or changes.
19.8 Ecode is not bound by nor should the Merchant rely on:
(a) any representation by any agent, representative or employee of any third party that you may use to apply for Boost Services; or
(b) information posted on Boost’s Website of a general informational nature.
20.1 All notices, statements, demands, requirements or other communications and documents required or permitted to be given, served or delivered to any Party under this Agreement (hereinafter referred to as a “Communication”) shall be in writing in the English language and shall be either delivered by hand or sent by pre-paid certified or registered mail (airmail in the case of all international Communication) to that Party at its address stated below.. A Communication once given, served or delivered shall be irrevocable without the consent of the recipient, which may be given or withheld, in its absolute discretion. A Communication shall be deemed to have been given, served or delivered:
(a) if delivered by hand, upon delivery with acknowledgement;
(b) if sent by mail, after three (3) Business Days of postage;
(c) if sent by electronic mail, twenty-four (24) hours after e-mail is sent provided always a copy thereof is sent by post.
Attention : Boost Business Excellent Department
Address : Level 32, Axiata Tower, 9 Jalan Stesen Sentral 5, Kuala LumpurSentral, 50470 Kuala Lumpur, Malaysia
Email : firstname.lastname@example.org
To the Merchant:
The address, fax number and email as stated in the Merchant Application Form or otherwise provided to Ecode by Merchant.
21.1 Neither Party shall be liable for any cost or otherwise, for any delay and/or failure in the execution of their respective obligations if such delay or failure is due to Force Majeure.
21.2 Force Majeure shall mean any factors or impediment that are beyond the Party’s reasonable control and that it could not reasonably be expected to have taken the impediment into account at the time of the conclusion of this Agreement or to have avoided its consequences including but not limited to war, revolution, insurrection, riots, blockage or embargo, emergency, accident, fire, earthquake, flood, storm, industrial strikes, lockouts or other labour disputes not instigated or caused by the affected Party for the purposes of avoiding its obligations herein, pandemics and viral outbreak. Provided that an event of Force Majeure shall not include economic downturn, non- availability or insufficient funds, or lack of financing on the part of the affected Party to carry out its obligations under this Agreement.
21.3 If either Party is prevented or delayed in the performance of any obligation under this Agreement by events of Force Majeure, the affected Party shall give written notice thereof to the other Party within seven (7) days of the happening of such event, specifying the details constituting Force Majeure and the anticipated period during which such prevention, interruption or delay may continue.
21.4 Where possible the Parties shall diligently mitigate or remove the effects of Force Majeure. Either Party upon receipt of the notice of Force Majeure shall confer promptly with the other and agree upon a course of action to remove or alleviate such effect and shall seek reasonable methods of resuming full performance of its obligations and achieving the objectives under this Agreement.
22.1 In the event that there is any dispute or claim arising out of or in connection with this Agreement or the interpretation of this Agreement (“Dispute”), either party may issue a written notice (“Dispute Notice”) to the other Party stating the nature of the Dispute and requesting that the authorised representatives of each Party resolve the Dispute. If the authorised representatives of the Parties are not able to resolve the Dispute after a period of thirty (30) from the date the Dispute Notice or such other extended period as may be mutually agreed between the Parties, then the Parties will attempt to settle the Dispute by mediation which shall take place in accordance with the Kuala Lumpur Regional Centre for Arbitration Mediation Rules for the time being in force The mediation shall start not later than thirty (30) days after the appointment of the mediator. Provided that the right to issue proceedings is not prejudiced by a delay, no Party shall commence arbitration or court proceedings in relation to any Dispute until the following:
(a) it has attempted to settle the Dispute by mediation and no settlement is reached within sixty (60) days after the commencement of the mediation or such other extended period as may be agreed by the Parties; or
(b) the mediation is terminated or brought to an end without the Parties reaching a settlement on the Dispute.
Where mediation is not successful, then either Party may refer the Dispute to arbitration in accordance with the rules of the Arbitration Act 2005 for the time being in force.
22.2 The arbitration proceedings shall be conducted in English and the seat and place of arbitration shall be Kuala Lumpur, Malaysia.
22.3 There shall be a single arbitrator to be mutually agreed in writing by the Parties and if the Parties fail to agree within thirty (30) days from the date the Dispute is referred to arbitration, the arbitrator shall be appointed by the Director of the Kuala Lumpur Regional Centre for Arbitration
22.4 A Party shall not be prevented from seeking or obtaining an enjoining order, interim order or interim relief in the court prior to the arbitral tribunal being instituted.
22.5 Recognition and enforcement of the arbitration award may be rendered in any court of competent jurisdiction, as the case may be.
22.6 The Parties agree that the arbitration award shall be final and binding on the Parties.
22.7 To the fullest extent permitted by law, each of the Parties hereby expressly waive any right under any relevant laws and regulations, decrees or policies having force of law that would otherwise give a right to appeal against the decision of the arbitral tribunal, and the Parties agree that no Party shall appeal to any court against the award or decision contained therein.
22.8 No Party or person involved in any way in the creation, coordination or operation of the arbitration of any Dispute may disclose the existence, content or results of the Dispute or any arbitration conducted under this Agreement in relation to that Dispute unless the same is required by law or rules of any stock exchange.
22.9 Notwithstanding the provision of this Clause 22, a Party may pursue remedies for breach of confidentiality under Clause 13 and/or with respect to its Intellectual Property Rights in the Malaysian courts.
23.1 This Merchant Agreement including any annexures thereof and the Merchant Application Form shall constitute a binding contract between the Parties hereto. In the event that there are any inconsistencies between the Merchant Agreement and the Merchant Application Form, the Merchant Application Form shall prevail.
23.2 Nothing in this Agreement shall be construed as to create the relationship of employer-employee, partners, collaborators, joint-venture or principal-agent between the Parties hereto. The Parties shall be independent contractors and neither Party shall bind the other by its acts, deeds or omissions.
23.3 This Agreement supersedes all previous negotiations, writings, commitments or agreements, either oral or written, between the Parties hereto.
23.4 This Agreement shall be binding on and shall enure for the benefit of each of the Parties’ successors. The Merchant shall not assign nor transfer any of its rights, benefits or obligations under this Agreement save with the prior written consent of Ecode.
23.5 The illegality, invalidity or unenforceability of any provision of this Agreement under the laws of any jurisdiction shall not affect its legality, validity or enforceability under the laws of any other jurisdiction nor the legality, validity or enforceability of any other provision of this Agreement.
23.6 Failure or delay on part of either Party to enforce any provision(s) of this Agreement at any point of time shall not be construed to be a waiver by such Party of such rights thereafter to enforce each and every provision of this Agreement.
23.7 This Agreement shall be governed by and construed in all respects in accordance with the laws of Malaysia.
BOOST OPERATING GUIDE
1. Merchant shall not split a single sale into more than one Transaction.
2. Merchant must not process a transaction after receiving decline response (Exception: System failure for that transaction, Transaction time-out, Customer Request to reprocess).
3. Merchant shall stop processing the Transaction as soon as Ecode tells Merchant to do so.
4. The wallet transaction must not be a payment for goods or services that violates a law that applies to Merchant or the wallet holder or for goods and services outside the description of Merchant’s business.
5. Merchant shall not attempt to levy service charge for use of wallet and must not attempt to set minimum transaction limits for Transaction for the use of Boost wallet.
1. Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services;
2. Body parts which includes organs or other body parts;
3. Child pornography which includes pornographic materials involving minors;
4. Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection;
5. Drugs and drug paraphernalia which includes illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms;
6. Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items;
7. Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property;
8. Illegal goods, which includes materials, products, or information promoting illegal goods or enabling illegal acts;
9. Offensive goods, which includes literature, products or other materials that: (a) Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors (b) Encourage or incite violent acts (c) Promote intolerance or hatred;
10. Offensive goods, crime that includes crime scene photos or items, such as personal belongings, associated with criminals;
11. Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments;
12. Any product or service, which is not in compliance with all applicable laws and regulations in Malaysia