This Agreement was created on the ________________________, and is made together with the date of application between:
GKASH SDN BHD (Company No. 10140333-T), a company incorporated in Malaysia
and having its principal place of business at Penthouse, Level 11 Tower 3 Avenue 3, The Horizon,
Bangsar South, No. 8, Jalan Kerinchi, 59200 Kuala Lumpur, Malaysia (hereinafter called "GKASH" )
The Merchant, a company incorporated in Malaysia or an individual with details as stated in
Section A of the application form (hereinafter called "Merchant") of the other part.
NOW IT IS HEREBY AGREED:
"Agreement" means this Agreement, the Merchant's application and the Annexure hereto, including all amendments and modifications mutually agreed in writing by the Parties from time to time;
"Business Day" means any day (excluding Saturdays, Sundays and federal holidays) on which banks in Kuala Lumpur are open for business;
"Confidential Information" means all information which prior to or upon its disclosure is designated as confidential by one party (the Disclosing Party) to the other party (the Receiving Party), or which should reasonably be considered as information of a confidential nature by the Receiving Party;
"Customers" means the Merchant's registered customers which are [registered] with GKASH to utilize the Service;
"Effective Date" means the date of this Agreement;
"Financial Institution" means any banking institution that is engaged by Parties or either Party for the fulfillment of any obligation in this Agreement including for the Service;
"Internet Payment" means payment of the bill made by Customers via various Internet payment options including but not limited to credit card, online banking service and/or e-money;
"Merchant's Information" means any information that the Merchant provides to GKASH in the registration of Service or any other information provided by the Merchant in connection with the Service;
"Personal Data" has the meaning ascribed to it in the Personal Data Protection Act, 2010 (PDPA) which means any information in respect of commercial transactions, which;-
is being processed wholly or partly by means of equipment operating automatically in response to instructions given for that purpose;
is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,
is recorded with the intention that it should wholly or partly be processed by means of such equipment; or
that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user, including any sensitive personal data and expression of opinion about the data subject; but does not include any information that is processed for the purpose of a credit reporting business carried on by a credit reporting agency under the Credit Reporting Agencies Act 2010.
"Service Fee" means the charges, fees and prices payable by the Merchant to GKASH under this Agreement for the Service at the agreed rate;
"Service" means the delivery of Merchant's electronic bill to the Customers, and the ability of the Customers to make payments for the bills using the Website or using PLZ;
"Support Services" means additional services as may be requested and required by the Merchant beyond the Service;
"Term" means the period of twelve (12) months and any subsequent term if this Agreement is extended by the Merchant in accordance with Clause 10.2;
"Trademarks" means all trademarks and logos of GKASH that exist now or in the future, both registered and non-registered, all as may be specified by GKASH from time to time;
"Transaction" means Internet Payment effectuated via the Service;
"Website" means GKASH's website at www.pay.my;
The maximum negative balance permitted for a Merchant to have in its account is -RM100. Once the negative balance exceeds -RM100, GKASH at its sole discretion, may suspend the Merchant form utilising the Service until and unless either payment has been made by the Merchant for the services, or the negative balance has been set off.
When and in any such event (hereinafter referred to as an "Event of Default") the Party not in default (the "Non-Defaulting Party") shall be entitled (but shall not be obliged) to give notice in writing to terminate this Agreement to the Defaulting Party within fourteen (14) days from the date of which the Non-Defaulting Party becomes aware of the occurrence of the Event of Default.
If the performance of this Agreement or any obligation hereunder is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected, upon giving prompt notice to the other Party, shall be excused from such performance, except for the making of payments hereunder, to the extent of such prevention, restriction, or interference, for so long as the non-performing Party uses reasonable efforts to resume performance. In the event of a non-performance pursuant to this Section 13 for more than sixty (60) days, the other Party may terminate this Agreement upon thirty (30) days' written other Party.
This Agreement sets forth and shall constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and shall supersede any and all promises, representations, warranties or other statements whether written or oral made by or on behalf of one Party to the other of any nature whatsoever or contained in any leaflet, brochure or other document given by one Party to the other concerning such subject matter. This Agreement may not be released, discharged, supplemented, amended, varied or modified in any manner except by an instrument in writing signed by the Parties hereto. As from the Effective Date, all previous arrangements, agreements, compromise, commitments, negotiation and moratorium executed hereto shall be superseded by this Agreement.
The failure to exercise or any delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
The Parties may not transfer any rights or obligations it may have under this Agreement without the prior written consent of the other Party. This Agreement shall be binding upon and inure to the benefit of the parties, their legal representatives, successors, and permitted assignees.
Any of the terms conditions, stipulations, provisions, covenants or undertakings contained herein which are illegal void prohibited or unenforceable in any respect under the law governing this Agreement or its performance, such illegality, invalidity or unenforceability shall be ineffective to the extent of such illegality, void, prohibitions or unenforceability without invalidating the remaining provisions hereof and any such illegality, void, prohibition or unenforceability shall not invalidate or render illegal, void or unenforceable any other terms conditions stipulations provisions covenants or undertakings contained herein.
This Agreement is governed by and shall be construed in accordance with the laws of Malaysia, and the Parties hereby agree to submit to the exclusive jurisdiction of the Court of Malaysia.
Time is of the essence of this Agreement.
Each Party shall bear their own solicitors' costs in respect of this Agreement and the stamp duty of this Agreement and the penalty (if any) shall be borne by the Merchant.
The Parties are aware of the requirements of the PDPA in relation to Personal Data.