Terms of use

Last updated: 28th April 2020

Users: all users not limited to those customers, employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Software and Services. Customer will ensure that any person having access to or use of the Software is subject to any obligation of confidentiality with respect thereto at least as restrictive as the confidentiality obligations set forth in this Agreement.


Documentation shall mean the document made available to the Customer by the Company online as may be notified by the Company to the Customer from time to time which sets out a description of the user instructions for the Software and Services;

Service(s) shall mean services pertaining to the Software provided by Company including implementation, support, training and integration services and such other services additionally outlined in mutual agreement between the parties;

Platform shall mean DelyvaX more appropriately described under Section 4, an online software application and platform provided by the Company as part of the Services and any accompanying Documentation permitted to be used by the Company under this Agreement;


1. INTRODUCTION:
By using the Platform, Customer is agreeing to comply with and be bound by these terms and conditions (“Terms of Use”), which together with the Privacy Policy (“Privacy Policy”) govern the Company’s relationship with the Customer. If the Customer disagrees with any part of these Terms of Use or Privacy Policy, the Customer may not use the Platform in entirety. The Services are subject to the limitation to these Terms of Use, Privacy Policy. Company may discontinue or revise any or all aspects of the Services at any time, at its sole discretion.


2. ELIGIBILITY:
By registering with the Platform, the Customer represents and warrant that:
• The Customer is fully able, competent and authorized to enter into the terms, conditions, obligations, representations and warranties set forth
in these Terms of Use;
• The Customer is authorized to use and avail Services or access the Platform for and on behalf of the company or any other entity, the
Customer is representing.
• The Customer’s use of Platform does not violate any applicable law or regulation. Use of Platform is void where prohibited.

3. REGISTRATION:
In order to avail the services or access the Platform, the Users are required to register with the Platform, by either logging in through their accounts maintained with certain Third Party Platforms (defined below) or by using the new register/sign up option available at the Platform (“User Account”). Customer shall be responsible for maintaining the confidentiality of its Account and Password and Customer agrees to accept responsibility for all activities that occur under its Account or password and of the Services in Customer’s name. The User may create multiple sub-users with controlled access to the User Account. Company shall not be responsible for any misuse by the sub-users or access given to the sub-users by the User. However, Customer may be liable to Company and its affiliates/ partners for any losses caused to them due to any unauthorized use or misuse, including the use and access by the sub-users.


As part of the Services, User authorize the Platform to import User’s details and Personal Information dispersed over Third Party Platforms. "Third Party Platforms" are social networking platforms, such as Facebook, Google account and other similar platforms.


Customer agrees that the information it provides to Company at the time of registration and at all other times will be true, accurate, current, and complete. Customer also agrees that it will ensure that this information is kept accurate and up-to-date at all times.


By registering to the Platform or using the Services of the Platform does not deem to make the Customer a shareholder or an affiliate of Company for any purposes whatsoever, nor shall the Customer have any of the rights of statutory users of the Platform.


Customer agrees to abide by laws and regulations of Malaysia and are solely responsible for all its acts or omissions in relation to the use and access of the Platform.


Company reserves the right to modify or discontinue Customer’s Account at any time for any material breach of the obligations under these Terms of Use by Customer or of reported abuse of the Platform as may be bought to Company’s notice appropriately.
Customer shall be responsible for maintaining the confidentiality of its Account and Password and Customer agree to accept responsibility for all activities that occur under its Account or password and of the Services in Customer’s name.

 

4. PLATFORM & SERVICES DESCRIPTION:
DelyvaX is a Platform which facilitates the Users to receive, manage and assign order with the User Account maintained with the Platform to perform services defined under the platform. The Platform offer access to web applications and mobile applications that enables users to create and edit services, orders, tasks, customers, fleet, pricing, delivery and other related activities. DelyvaX also provides an API to connect the Customer with other 3rd party platform or system.


As part of the Services, the Platform also has a feature to fetch the order details from the respective order management channel such as e-commerce store or marketplace and capture the same on its system for the Users to process in Do It Yourself (DIY) model.


The Platform shall provide certain basic analytical reports on the usage and payments by the User-based on the content updated by the Users. Users understand and acknowledge that these reports are merely opinions put forth by the Platform based on the information received from the Users and any order management channel. These reports are to be used at the sole discretion of the User.


The Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Company is not responsible for any delays, delivery failures, information dissemination, or other damage resulting from any electronic, security, internet, communication, transmission, and all related problems. Customer assumes all risk of loss, and all risk of harm, damage, and injury that may result to the user and/or its affiliates, customers, and associates, in connection with the use of the service, including without limitation risks inherent in the insecure and non-encrypted communications utilized in connection with the service.


Company does not guarantee the availability of the Platform at all times. We shall make reasonable efforts to make the Services available to Customer, at all times through the Platform. However, as the Services are provided over the Internet, data and cellular networks, the quality and availability of the same may be affected by factors outside the Company’s control. Therefore, We shall not be liable for non-availability of the Services at any time. We may try and restore access to the Platform and the Services on a reasonable and commercially viable basis. Customer waives all its rights and confirm that Company shall not be held liable for any non-performance of the Services, arising due to these limitations or restrictions. Company shall reserve the rights to provide services as mentioned in Section 17 of this agreement.

 

5. LICENSE:
Subject to terms and conditions of these Terms, Company hereby grants Customer a non-exclusive, non-assignable, non-transferable, revocable and limited license to use and avail the Services provided by the Platform and for no other reason.


Customer’s use of the Platform is subject to laws and regulations of Malaysia. The Customer undertakes not to reverse engineer, reproduce, publish, re-publish, disassemble, disseminate, modify, copy, distribute, transmit, display, perform, license, create derivative works from, transfer, or sell any material, service or feature, information, reports, software of the Platform and further agree not to use this Platform as part of any another Platform, upload of any virus, malware, Trojan, use any content for commercial purposes; access or modify partially or otherwise to any source code; track or monitor the other users; do anything that puts an enormous/ unreasonable load on Company’s servers; copy or create derivative work on the Platform.

 

6. CONTENT CREATED AND STORED BY CUSTOMER:
Customer is solely responsible for the content that it creates or stores on the Platform, along with the consequences of its transmission. Customer is further responsible, if it accidentally make any private content publicly available.


Customer represent and warrant that the content it creates and stores on Platform does not violate any applicable law, rule or regulation of Malaysia or third party rights, including copyright, trademark, privacy, publicity, or other personal or proprietary rights, breaches or conflicts with any obligation, such as a confidentiality obligation, or contains libellous, defamatory, or otherwise unlawful material. Customer agrees to indemnify and hold the Company harmless against any claims against the Company arising out of or in relation to Customer Content created, stored or used through the Platform.


Customer acknowledges that, Company is not under any obligation to keep back-up copies of the content once Customer Account is deleted.


The Platform provides Customer with the ability to modify any content created by Customer. Customer acknowledges and agrees that it is solely responsible for any modifications it may make and the same is required to be in accordance with applicable law. Company do not have control over data stored by Customer on the Platform and Customer agrees that the same is solely managed by the Customer.

 

7. RESTRICTION ON SERVICES:
The User understands and acknowledges the following:
• Users will not use the Services for any purpose that is illegal, unlawful or prohibited by these Terms of Use;
• User will not remove, alter,or obscure any proprietary notices (including copyright notices) on any portion of the Platform;
• User will not use Services in any manner that threatens or is likely to threaten the integrity, performance or availability of the Services and the
Platform;
• User will not reverse engineer, decompile or otherwise extract the source code(s) related to the Platform or any part thereof;
• Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to other users;
• Impersonate another person or access another User’s Account;
• User will not collect information about other Users in any illegal or unlawful manner for any
• illegal or unlawful purpose;
User will not use Services in any manner that can damage, disable, overburden, or impair, or undertake any action which is harmful or potentially harmful to, any of the servers, networks, computer systems or resources connected to any of the servers connected, directly or indirectly to the Services or the Platform, or interfere with any other Third Party's access to and enjoyment of Services or the Platform;


8. PROHIBITED CONDUCT:
Customer agrees not to engage in any of the following activities:


Violating laws and rights:
Customer shall not (a) use the Platform for any illegal purpose or in violation of any laws of Malaysia, (b) violate or encourage others to violate any right of or obligation to a third party, including but not limited to, by infringing, misappropriating, or violating intellectual property, confidentiality, or privacy rights.

If any data of the Platform is used by the User for any unlawful activity, then Company shall have all the rights related to such data and shall have right to co-operate with legal authorities regarding the same.


Solicitation:
Customer shall not use the Platform or any information provided through the Platform for the transmission of advertising or promotional materials, including junk mail, spam, chain letters, or any other form of unsolicited or unwelcome solicitation.


Disruption:
Customer shall not use the Platform in any manner that could disable, overburden, damage, or impair the Platform, or interfere with any other party’s use and enjoyment of the Platform; including by (a) uploading or otherwise disseminating any virus, adware, spyware, worm or other malicious code, or (b) interfering with or disrupting any network, equipment, or server connected to or used to provide any of the Services on the Platform, or violating any regulation, policy, or procedure of any network, equipment, or server.


Impersonation or unauthorized access:
Customer shall not impersonate another person or entity, or misrepresent Customer’s affiliation with a person or entity when using the Platform; Customer shall not use or attempt to use another’s account or personal information; and, Customer shall not attempt to gain unauthorized access to the Platform, or the computer systems or networks connected to the Platform, through hacking password mining or any other means.


9. CHANGE IN TERMS:
Company reserves the right to change these Terms of Use at any time and to notify Customer in writing.


10.DISCLAIMERS:
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE PLATFORM AND THE SERVICE IS ENTIRELY AT ITS OWN RISK AND THAT THE PLATFORM AND THE SERVICES THEREIN ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PLATFORM, THE SERVICES AND CUSTOMER’S USE THEREOF. COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES OR THE PLATFORM’S
CONTENT OR THE DETAILS AND CONTENT SHARED BY THE USERS OR THE CONTENT OF ANY THIRD PARTY WEBSITES LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM, SERVICE AND SOFTWARE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF COMPANY’S PLATFORM AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL, TECHNICAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE PLATFORM, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, COMMUNICATED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE PLATFORM OR THE SERVICE. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM AND PLATFORM SHALL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CUSTOMER AND/OR OTHER USERS. COMPANY SHALL NOT BE RESPONSIBLE FOR SERVICE DISRUPTION CAUSED DUE TO LOSS OF INTERNET CONNECTION BETWEEN USER AND THE PLATFORM AND THE IMPACT ON THE USAGE OF USER.


CUSTOMER ALSO AGREE NOT TO INTERFERE WITH OR ATTEMPT TO GAIN UNAUTHORIZED ACCESS TO ANY PARTS OF PLATFORM OR ANY ACCOUNTS, COMPUTER SYSTEMS OR NETWORKS, ETC.
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT IT SHALL BE SOLELY RESPONSIBLE FOR THE FULFILLMENT OF ITS ORDERS AND THE MANAGEMENT OF ITS FLEET IN RELATION TO THE ORDER WITH ITS BUYERS OR CUSTOMERS. COMPANY SHALL NOT BE RESPONSIBLE FOR THE FULFILMENT OF CUSTOMER’S ORDERS AND THE MANAGEMENT OF CUSTOMER’S FLEETS. COMPANY SHALL NOT BE LIABLE FOR ANY DEFICIENCIES IN THE FULFILMENT OF CUSTOMER’S ORDERS.
CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT IT SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL DISPUTES WHICH MAY ARISE BETWEEN CUSTOMER AND ITS BUYERS OR CUSTOMERS. CUSTOMER AGREES AND CONFIRM THAT COMPANY SHALL NOT BE LIABLE OR BE MADE PARTY TO ANY SUCH DISPUTE OR CLAIMS.


11. LIMITATION OF LIABILITY:
IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF PLATFORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY ASPECT OF CUSTOMER’S USE OF THE PLATFORM OR THE SERVICE, INCLUDING WITHOUT LIMITATION WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE PLATFORM OR THE SERVICE, FROM INABILITY TO USE THE PLATFORM OR THE SERVICE, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE PLATFORM OR THE SERVICE. SUCH LIMITATION OF LIABILITY SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR RENDERED THROUGH OR ADVERTISED IN CONNECTION WITH THE PLATFORM OR THE SERVICES OR ANY LINKS ON THE PLATFORM, AS WELL AS BY REASON OF ANY INFORMATION, OPINIONS OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE PLATFORM OR THE SERVICES. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. CUSTOMER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT BE LIABLE FOR USER DETAILS AND CONTENTS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH CUSTOMER.


THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.

 

12.INDEMNIFICATION:
Customer agrees to indemnify Company and hold Company harmless from and against any claims arising out of or relating to: (i) details and Content that Customer submits or transmits for the Services, (ii) Any deficiencies in the fulfilment of Customer’s orders (iii) Customer’s violation of any rights of any other person in connection with the Platform, (iv) infringement of any third party intellectual property rights, (v) any breach of the terms and conditions of these Terms of Use, (vi) any breach of applicable law (vii) any representation and warranties made in relation to the Services (viii) transactions (present and subsequent) between Customer and its customers and (ix) any violation of any laws and regulations of Malaysia.


13.ANTI-SPAM POLICY:
Customer certifies that it shall avail the Services in accordance with these Terms of Use. Customer is forbidden to transmit unsolicited commercial email (spam) by using the Services. Additionally, it is required to reconfirm (permission pass) or stop mailing an existing list when it is determined to be in violation of our anti-spam policy. Repeated violations or failures to comply with this anti-spam policy shall result in termination of Customer’s access to the Services. Customer agrees and acknowledges that, Company shall not be held liable for any claim that may arise due to Customer’s violation of this anti-spam policy.


14.PRIVACY POLICY:
Company is committed to responsibly handle the information and data it collects through the Platform.

 

15.OWNERSHIP OF INTELLECTUAL PROPERTY:
The Platform and all the rights including but not limited to intellectual property rights subsisting under or in relation to the Platform are owned by Company and its affiliates, subsidiaries, licensors as the case may be. Company respects the copyright, and it prohibits Users from submitting, uploading, posting, or otherwise transmitting any Content or details on the Platform that violates another person’s proprietary rights.
If Customer believes that the Platform contains elements that infringe its intellectual property rights in its work, please notify Company immediately. If Company receive intellectual property right infringement claim notification, and it is felt appropriate, Company may remove all such content which is indicated as infringing and/or take any other appropriate action at Company’s discretion.


All materials on this Platform, including but not limited to audio, images, photographs, software, text, icons and such like (the “Platform Content”), are protected by copyright under the copyright laws. Customer cannot use the Platform Content, except as specified herein.
DelyvaX is the trademark wholly owned by DELYVA SDN. BHD. There may be proprietary logos, service marks and trademarks found on the Platform whether owned/used by Company or otherwise. By displaying them on the Platform, Company is not granting Customer any license to utilize those proprietary logos, service marks, or trademarks. Any unauthorized use of the Platform Content may violate copyright laws, trademark laws, the laws of privacy and publicity, and civil and criminal statutes.


16.TERM AND TERMINATION:
This Agreement shall come into full effect from the Effective Date. Either party may terminate this Agreement at any time by reasonable notice to the other party.


If Customer wishes to terminate these Terms of Use, Customer may immediately contact Company to delete its User Account and stop accessing or using the Services or the Platform. Customer’s right to access and use the Platform terminates automatically upon Customer’s material breach of any of the terms of these Terms of Use. Upon termination, Customer’s right to access the Platform and use the Services shall immediately cease. Thereafter, Customer shall have no right, and the Company shall have no obligation, to execute any of the uncompleted tasks. Company reserves the right to terminate these Terms of Use, without any prior notice to Customer.


The deletion of the User account does not immediately remove the contents of the account. Similarly, if such data is being used in offline mode, it shall not be possible for the Company to remove it completely and permanently.
Survival: Provisions such as disclaimer of warranties, limitation of liability, indemnity, ownership of intellectual property, confidentiality, miscellaneous terms, prohibited conduct shall survive any termination.

 


17.MISCELLANEOUS TERMS:

Choice of Law and Jurisdiction: These Terms of Use are governed by and construed according to the laws of Malaysia, the acceptance of the Terms of Use shall be deemed to have been given at Malaysia. Any dispute arising out of this Terms of Use shall be resolved through arbitration. The arbitration will be conducted in Malaysia, in accordance with the Rules of Asian International Arbitration Centre (AIAC) by a sole arbitrator who shall be appointed by Company and the award made in pursuance thereof shall be binding on the parties. The dispute resolution and arbitration process mentioned in this Section will not prohibit Company from approaching the courts for appropriate interim reliefs.


Force Majeure: Without limiting the foregoing, under no circumstances shall Company is held liable for any damage or loss due to deficiency in the performance of Services resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, change in law, telecommunication equipment failures, software failures, machinery breakdown, strike, or due to government regulations, floods, storms, electrical failure, civil disturbances, riots and any other reason beyond the reasonable control of Company.


No waiver: Company’s failure to insist on or enforce strict performance of any of the terms of these Terms of Use shall not be construed as a waiver of any provision or right.


Severability: If any part of these Terms of Use is held to be invalid or unenforceable by any law or regulation or final determination of a competent court or tribunal, that provision shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions.

 

© 2020 Delyva Sdn. Bhd.