Effective Date
19th August 2024
BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
These Terms of Service (the “ToS”) is a binding agreement between You and Vialing Sdn Bhd (“Vialing” or We”). In consideration of the terms and conditions set forth below, the parties agree as follows:
Vialing reserves the rights to modify this Agreement at any time without prior notice. Any changes made to the Agreement will be effective immediately upon being posted on our website and we will take reasonable measures to communicate the changes to you via Customer’s Site, email, or other means. By continuing to use our services after modifications, it will indicate your acceptance of the revised terms.
You may be required to create an account and specify a password in order to use the services featured on Vialing’s products and services. You must provide only truthful, current and accurate information about yourself so Vialing may send notices, statements, and other information to you via email or through End User account, which notifications will be subject to this Agreement and the Privacy Notice.
An account may be provided to you by an administrator such as your employer or educational institution. This gives them the right to access, edit, or disable your account without our involvement.
By accessing and using Vialing (“Services”), you agree to comply with the following:
AND AGREE NOT TO:
By violating any of the terms, we reserve the right to take appropriate action, including suspending or terminating your access to Vialing (“Services”) and reporting any unlawful activities to relevant authorities. We may also monitor your use of Services to ensure you are acting in accordance with the Terms and Conditions (“Agreement”) and any applicable laws. And investigate any suspected violations of this Agreement and improper use of the Services.
The Customer and its licensors retain all rights, title, and interest, including intellectual property rights, in the Customer Data and any changes made to it while using Vialing. The customer grants us (“Vialing”) and our affiliates the right to process Customer data. This right is solely for (i) providing, maintaining and improving Vialing, (ii) fulfilling any obligations owed to Customer under this Agreement, and (iii) complying with legal requirements. Data provided by the Customer will make Customer responsible for the accurate, content, and legality of Customer Data. This guarantees that Customer has sufficient rights in the customer data to grant the rights described in this Agreement to Vialing.
Customer data will be processed in accordance with applicable data protection laws, this Agreement, the Subscription Agreement and the Privacy Notice. Vialing will also take appropriate technical and appropriate measures to protect Customer data against unauthorized access, loss, or damage. Parties involved agree to comply with the terms of Personal Data Protection Act (PDPA) 2010, which is incorporated into this Agreement, with respect to the provision of Personal Data as defined in PDPA 2010.
Customer retains all rights, including any intellectual property rights, to the Customer Data. This includes modifications made to the Customer Data. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. The Customer acknowledges that the Services are provided as online, hosted solutions, and that the Customer has no right to access the underlying source code of any Services, except for any downloadable Software, which is available in object code format (if applicable). Vialing may use feedback, suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer relating to the services or products provided by Vialing in order to incorporate them into the services and products. Customer agrees that its name, logo, and/or use case may be used by Vialing in marketing materials (“Promotional Materials”). Marketing materials may be for both internal and/or external purposes of Vialing. The rights granted here are global, permanent, and applicable in any media format. If any matter arises and Customer would like Vialing to stop the use of Promotional Materials of Customer, Customer may submit an email to [email protected] any time. Please do note that the request may take up to thirty (30) days to be fulfilled.
Notwithstanding anything to the contrary in this Agreement, Vialing reserves the rights to collect and use any data that is gathered in or derived from the use of the services (“Usage Data”) to develop, enhance, support and operate its products and services. Vialing shall not share with a third party any Usage Data that includes Customer’s Confidential Information except (i) in accordance with Section 7 (Confidentiality) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that the data no longer directly identifies Customer or Customer’s Users.
Vialing reserves to rights to modify, update, add or remove features, functions and entitlements anytime without prior notice. However, Vialing ensures that (i) Vialing will not materially decrease the overall functionality of the Service or Software during Customer’s Subscription Term, except where any such modifications are required for data security reasons, or to comply with the applicable law and (ii) any such modifications are made on a prospective and non-discriminatory basis. These modifications to the Services are subject to this Agreement. Customer agrees that their subscription to the Services and Software is not based on the promise of any future functionality or features, nor on any verbal or written statements made by Vialing regarding future functionality or features.
These Third-party Services may integrate with Vialing’s Services but are not licensed by Vialing pursuant to this Agreement, however, are governed by the third-party provider’s terms and conditions and privacy policies that they are accompanied by, which is accepted separately by Customer. Vialing does not warrant or support Third-Party Services, unless expressly stated and provided otherwise in Subscription Agreement. Vialing is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by third party. The Service may contain features designed to interoperate with Third-Party Services. Vialing cannot guarantee the continued availability of such Third-Party Services and may cease supporting them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the Third Party Service provider cease to make the service available for interoperation with the corresponding Service features in a manner that is acceptable to Vialing. Customers understand that Vialing is not responsible for providing technical support for the Third-Party Services and that Vialing is not responsible for the data hosting and data transfer practices followed by the providers of such Third-Party Services.
All charges related to the Customer’s Site (“Fees”) are detailed in the applicable Subscription Agreement or on our Website. For credit card payments, the payment is due immediately upon receipt of the invoice. The Customer authorizes Vialing or our authorized agents to charge their credit card upon subscribing to the Services and for any renewals. For other accepted payment methods, payment is due in full within thirty (30) days from the invoice date, unless otherwise stated in the Subscription Agreement. Payment obligations are non-cancellable, and Fees are non-refundable, except as expressly permitted in this Agreement. The Customer will pay the Fees using an accepted payment method specified in the applicable Subscription Agreement or on the Website. Vialing reserves the rights to revise any fees, however, shall not be done more than once a year. Unless otherwise specified in the Subscription Agreement, the Customer’s subscription to the Services will automatically renew for a Subscription Term according to the renewal terms outlined in Section 4(b) below. During the Subscription Term, the Customer may not: (i) reduce their User count, or (ii) downgrade their Service Plan.
If undisputed Fees are more than thirty (30) days overdue, then, following written notification from Vialing, Vialing reserves the rights to suspend Customer’s access to Vialing and impose a Late Payment Interest, including, without limitation, Customer’s Site, until such unpaid Fees are paid in full.
Vialing will not enforce its rights under Section 4(b) (Late Payments), Section 5 (c) (Suspension of Service), or Section 5(d) (Termination for Cause) in cases of non-payment by the Customer if the Customer is disputing the charges reasonably and in good faith and is actively cooperating to resolve the dispute. If the dispute remains unresolved after thirty (30) days, Vialing may pursue any remedies available under this Agreement, whether by law or in equity, despite any terms that might limit remedies during a dispute. It is important to note that any undisputed amounts must be paid in full.
The Fees exclude any taxes, levies, duties, or similar governmental charges, including value-added, sales, use, or withholding taxes imposed by any local, state, provincial, or foreign jurisdiction (collectively referred to as “Taxes”). The Customer agrees to pay all applicable direct or indirect Taxes related to their purchases under this agreement. If Vialing is legally required to collect these Taxes, they will be listed on the Vialing invoice. If the Customer must withhold any amounts due to any law or tax regime (other than Malaysia’s income tax law), the Customer will increase the payment amounts so that Vialing receives the full quoted and invoiced amount. If Vialing is legally required to pay or collect Taxes that the Customer is responsible for under this section, the amount will be invoiced and paid by the Customer, unless the Customer provides Vialing with a valid tax exemption certificate from the appropriate taxing authority before the invoice date.
Affiliates of the Customer are allowed to purchase Services directly from Vialing by executing an Subscription Agreement. This Subscription Agreement will be governed by the terms of this Agreement and will establish a separate and new agreement between the Customer’s Affiliate and the Vialing entity that signs the Subscription Agreement. If the Affiliate is located in a different country than the Customer, the Subscription Agreement may contain adjustments to the terms applicable to the transaction(s), including but not limited to tax terms and governing law.
The Customer may procure Services, Software, or Application Software from an authorized third-party reseller of Vialing, including third-party marketplaces (“Channel Partner”), under a separate agreement with the Channel Partner. Any use of Services, Software, or Application Software obtained through a Channel Partner will be subject to this Agreement’s terms, with all fees (including Taxes) payable to the Channel Partner as per the terms between the Customer and the Channel Partner. The Customer acknowledges and agrees that if subscriptions to the Services, Software, or Application Software were acquired via a Channel Partner, any service credits or refunds due under this Agreement may be provided or managed by the Channel Partner on behalf of Vialing, proportionate to the fees paid by the Customer to the Channel Partner. The Channel Partner fulfilling these obligations will relieve Vialing of the same under this Agreement.
This Agreement becomes effective on the Effective Date (or, for online Customers, on the sign-up date on the Website) and will remain in effect throughout the current Subscription Term. Service Plans begin on the start date outlined in the applicable Subscription Agreement (or, for online Customers, the sign-up date on the Website) and continue for the Subscription Term specified in the Subscription Agreement.
Service Plans will automatically renew for the same number of Users and at the same Service Plan (with any add-ons) for a term equal to the previous Subscription Term unless either party provides written notice of non-renewal or downgrade at least sixty (60) days before the current Subscription Term ends. Vialing retains the right to raise the Fees at the beginning of each new Subscription Term, including any that are automatically renewed. The Fees for the renewed Subscription Term are payable on the renewal date.
Vialing reserves the right to suspend the Customer’s access to the Services, Software, Application Software, and/or Customer’s Site under the following circumstances: (i) late payment or non-payment of undisputed Fees, as outlined in Section 4(b); (ii) non-renewal of the Services by the Customer; (iii) a breach of Section 2 (Use of Site) by the Customer or its End Users; or (iv) if Vialing deems it necessary to suspend access to prevent or address the introduction of Malicious Software (defined in Section 8.b), a security incident, or other harm to the Customer, Vialing, or Vialing’s other customers. Vialing will notify the Customer of any such suspension and will make reasonable effort to limit the suspension to affected End Users or Vialing where commercially feasible. Access will be promptly restored once the issues causing the suspension are resolved. This suspension will not impact the Customer’s other responsibilities under this Agreement.
This Agreement may be terminated by either party through written notice to the other party if (i) the other party commits a material breach of this Agreement and does not fix the violation within thirty (30) days of receiving notice, or (ii) immediately if the other party is involved in any proceedings concerning insolvency, receivership, liquidation, or assignment for the benefit of creditors or becomes a subject of bankruptcy.
Once the Customer’s free trial expires, Vialing may promptly suspend the Customer’s access to the free trial Services. The Customer must export their data before the trial concludes, as all data will be permanently deleted afterward. Despite any terms to the contrary in this Agreement, Vialing has no responsibility to keep, store, or retain Customer Data beyond the free trial period.
Upon termination or expiration of this Agreement or any Subscription Agreement for any reason, the Customer’s access to the Services, Software, Application Software, APIs, and other Vialing will cease. Vialing strongly advises the Customer to export all Customer Data before closure of Customer Site. Vialing will allow the Customer to export their data for fourteen (14) days from the effective date of Customer Site closure due to: (i) termination or expiration of this Agreement, or (ii) termination or expiration of the applicable Subscription Agreement (“Data Export Period”). If Customer Data is retained by Vialing and can be exported and provided that the Customer is current on their payment obligations as described in Section 5, the Customer may contact Vialing within the Data Export Period at [email protected] to have Vialing export the Customer Data. After the Data Export Period, Vialing reserves the right to retain Customer data for up to three (3) months before permanently deleting it, except as necessary to comply with legal obligations, maintain accurate records, resolve disputes, and enforce agreements. Customer Data cannot be recovered once deleted.
Each party agrees to protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same way it protects its own Confidential Information of similar significance, using at least a reasonable level of care. Unless expressly permitted by this Agreement, the receiving party may use the disclosing party’s Confidential Information only to exercise its rights and fulfill its obligations under this Agreement. Disclosure of such Confidential Information is allowed only (i) to its employees, representatives, and agents who need to know the information for these purposes and are bound to maintain its confidentiality; (ii) as required by an order or subpoena from a relevant agency or court; or (iii) as necessary to comply with applicable laws or regulations. This section overrides any previous non-disclosure agreements between the parties regarding the confidentiality of shared information, including Customer Data, rendering such agreements ineffective for these matters. The receiving party acknowledges that unauthorized disclosure of Confidential Information would cause significant harm that cannot be remedied by damages alone, entitling the disclosing party to seek equitable relief in addition to any other legal remedies.
Vialing warrants that the Services, Software, or Application Software will perform in all material respects in accordance with the Documentation. If the Customer provides written notice of a claim within thirty (30) days of first becoming aware of a breach of this warranty, Vialing will diligently work to correct the Services, Software, or Application Software to comply with the warranty. If Vialing cannot make these corrections in a timely manner, either party may terminate the applicable Subscription Agreement, and the Customer will be entitled to a refund of any unused Fees that they have pre-paid for the relevant Services, Software, or Application Software, as the sole and exclusive remedy. This warranty does not apply if the error or non-conformance was due to the Customer’s breach of this Agreement, misuse of the Services, Software, or Application Software by the Customer or its Users, modifications made by anyone other than Vialing or its representatives, or third-party hardware, software, or services used with the Services, Software, or Application Software.
Vialing assures that the Services hosted by Vialing will be monitored with commercially available methods to detect and prevent the introduction of any malicious technology aimed at disrupting, damaging, or interfering with the proper use of, or gaining unauthorized access to, Vialing’s or the Customer’s computer and communication systems. This includes, but is not limited to, code with viruses, Trojan horses, worms, backdoors, trap doors, time-out devices, or similar harmful or destructive code, and any self-replicating code (collectively known as “Malicious Software”).
This section outlines Vialing’s total liability and the Customer’s sole remedy regarding an IP Claim. Vialing will defend the Customer and its officers, directors, and employees against any third-party claim alleging that the Customer’s use of Vialing Technology, in accordance with this Agreement, infringes on the third party’s patent, copyright, or trademark rights (an “IP Claim”). Vialing will indemnify and hold the Customer harmless from any damages and costs awarded against the Customer, or agreed upon in settlement by Vialing (including reasonable attorneys’ fees) resulting from such an IP Claim. Vialing will have no responsibility or obligation regarding any IP Claim if it is caused by (i) unauthorized use of Vialing Technology by the Customer, its Affiliates, or Users; (ii) modification of Vialing Technology by anyone other than Vialing or its representatives; or (iii) the combination, operation, or use of Vialing Technology with other data, hardware, or software not provided by Vialing. If the Customer’s use of Vialing leads to (or, in Vialing’s opinion, is likely to lead to) an IP Claim, Vialing may, at its own discretion and cost, (a) obtain for the Customer the right to continue using the technology as specified hereunder; (b) replace or modify it to be non-infringing; or (c) if options (a) or (b) are not feasible, either the Customer or Vialing may terminate the Customer’s subscription to the Service, with Vialing refunding the Customer, on a pro-rated basis, any Fees previously paid for the unused portion.
The Customer will defend Vialing and its Affiliates from any third-party claim (“Claim”) and will indemnify and hold Vialing and its Affiliates harmless from any damages and costs awarded against Vialing and its Affiliates, or agreed to in settlement by the Customer (including reasonable attorneys’ fees) resulting from such a Claim. This indemnification applies to the extent the Claim is caused by: (i) the Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein; or (ii) the Customer’s or its Affiliate’s violation of laws applicable to the Customer’s or its Affiliate’s business.
When a potential indemnity obligation arises under this Section 9, the indemnified party must: (i) quickly notify the indemnifying party in writing about the claim, (ii) grant the indemnifying party the right to oversee the investigation, defence, and settlement (if needed) of the claim at the indemnifying party’s own expense, and (iii) provide all necessary cooperation at the indemnifying party’s expense when requested. If the indemnified party fails to notify the indemnifying party of a claim under this section, it will not release the indemnifying party from its obligations hereunder; however, the indemnifying party will not be liable for any legal expenses incurred by the indemnified party before providing notice or for any damages and costs caused by significant prejudice due to delay or failure to notify. The indemnifying party cannot settle any claim that binds the indemnified party to any obligation (other than payment by the indemnifying party or stopping the use of infringing materials) or requires any admission of fault by the indemnified party without the indemnified party’s prior written consent, which should not be unreasonably withheld, conditioned, or delayed. Indemnification under this Section 9 does not apply if the indemnified party settles or admits to a claim without the indemnifying party’s prior written consent.
Vialing may use a third-party service provider to manage payment processing. The service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for Vialing. Customer must notify Vialing of any change in Customer’s payment account information, either by updating Customer’s Site or by e-mailing Vialing at [email protected].
Neither party is permitted to assign any of its rights or obligations under this Agreement, whether by law or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld. However, either party may assign this Agreement in its entirety (including Subscription Agreement) to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or most of its assets, without needing the other party’s consent. Any attempted assignment in violation of this section will be considered null and void.
This Agreement, together with any Subscription Agreement, the Privacy Notice, and Supplemental Terms, represents the entire agreement and replaces any previous agreements or communications between Customer and Vialing, including but not limited to Customer registration forms and purchase orders, related to the subject matter hereof. In case of any conflict between the Privacy Notice, the Supplemental Terms, any Subscription Agreement, and this Agreement, the order of precedence will be: first, the Privacy Notice; second, the Subscription Agreement; third, the Supplemental Terms; and fourth; this Agreement. If any provision of this Agreement is found to be unenforceable by a court of competent jurisdiction, that provision will be adjusted by the court and interpreted to best fulfil the original intent, with the remaining provisions continuing in effect.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Sections 2.b (Use of Site), 3 (Intellectual Property), 4 (Fees and Payment), 5 (Term, Termination and Suspension), 7 (Confidentiality), 8.c (Warranty Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), 11.c (Entire Agreement), 11.e (Survival), 11.f (Notices), 11.i (Governing Law), and 13 (Definitions) will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.’
All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service to the mailing address provided on the Subscription Agreement; or (ii) electronic mail to the e-mail address provided for Customer’s Site. The address for a notice to Vialing is: Vialing Inc., 9-3 Galleria Cyberjaya, Jalan Teknokrat 6, Cyber 5, 63000 Cyberjaya, Selangor, MALAYSIA with a copy to [email protected] by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or item of value from an employee or agent of the other party related to this Agreement. Reasonable gifts and entertainment provided in the normal course of business are not considered violations of this restriction. If the Customer becomes aware of any breach of this restriction, the Customer will make reasonable efforts to promptly inform Vialing at [email protected].
Neither party shall be liable for any failure or delay in performance under this Agreement to the extent such failure or delay is caused by conditions beyond the party’s reasonable control (force majeure events), including but not limited to acts of God, government actions, war, terrorism, civil disturbances, labor disputes, natural disasters, power failures, or other disruptions. The affected party shall promptly notify the other party of the occurrence of a force majeure event and shall use commercially reasonable efforts to mitigate the impact of the event. If the force majeure event continues for a period exceeding thirty (30) days, either party may terminate this Agreement upon written notice to the other party.
This Agreement is governed by the law of Malaysia Personal Data Protection Act 2010 without regard to conflict of law principles. The parties hereby submit to the exclusive personal jurisdiction of the federal court of Malaysia for any claims or dispute relating to this Agreement.
Any dispute, claim, or controversy arising from or related to this Agreement, including issues regarding its breach, termination, enforcement, interpretation, or validity, as well as determining the scope or applicability of the arbitration clause, will initially be resolved through arbitration. The arbitration will be conducted in accordance with its rules and procedures. The decision made in arbitration can be enforced by any court with appropriate jurisdiction. This provision does not prevent the parties from seeking temporary remedies to support the arbitration from a court with proper jurisdiction.
“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.
“Affiliate” or “Subsidiaries” means with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Customer Data” means all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.
“Documentation” means, the then-current, generally available user documentation provided by Vialing detailing the functionalities of the Software and the Services.
“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.
“Vialing” means (i) the Services, Software, Mobile Apps, Documentation, Vialing’s website(s), and any content published on the Vialing’s websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) Vialing’s Confidential Information, and (iv) any modifications or derivative works of the foregoing.
“Application Software” means, the Vialing-branded Software applications provided by Vialing to enable access and use of the Services through mobile or other handheld devices (such as apps on iOS or Android devices).
“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).
“Privacy Notice” means, Vialing’s privacy notice currently at (insert the link here to direct to the privacy notice) as updated from time to time.
“Service(s)” means, the Vialing software-based service offerings identified on the Subscription Agreement and any Updates, including any Software, API or Documentation made available by Vialing with such offering, but excludes any applications or APIs separately provided by third parties.
“Service Plans” means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.
“Software” means the generally available software provided by Vialing in connection with Customer’s use of the Services, and includes Mobile Apps, but excludes any applications or APIs that are provided by third parties.
“Subscription Term” means, the period stated on a Subscription Agreement during which Customer subscribes to the Services.
“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by Vialing to all subscribing customers but excludes separately priced new products or modules.
“User” or “Agent” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.
