A) TERMS AND CONDITIONS OF USE OF MERCHANT SERVICES (“TERMS OF MERCHANT SERVICES”)
Last update date: 5 December 2019

1 Introduction

1.1 Set forth below are the Terms of Merchant Services governing the use of:

1.1.1 the merchant back office, booking and ordering system (“System”) powered by My Mage Services Sdn Bhd (Company No.: 201901026659 (1335988-V)), a private company limited by shares incorporated in Malaysia and having its registered address at 2nd Floor, No. 17 & 19, Jalan Brunei Barat, Pudu, 55100 Kuala Lumpur, Wilayah Persekutuan and its business address at [Level 19, Sunway Tower, No.86, Jalan Ampang, 50450, Kuala Lumpur] and/or its subsidiary(ies) and/or its affiliate(s) (hereinafter collectively be referred to as the “Company”, and where the context requires or permits, “Company” may refer to any one of My Mage Services Sdn Bhd and/or its subsidiary(ies) and/or its affiliate(s)); and/or

1.1.2 any services made available to a party (“Merchant”) who has signed any contract, quotation, registration form or service order form (with the Company or upon acceptance of any free trial offer for using any modules of the System and/or its any related services (hereinafter singly or collectively be referred to as the “Merchant Services”).

1.2 The relevant information uploaded by Merchant or by any party authorised by Merchant using the System will be published on My-Mage.com and/or, its sub-domains (hereinafter collectively or singly be referred to as the “Site(s)”), My-Mage mobile applications and/or mobile webs (hereinafter collectively or singly be referred to as the “Application(s)”), and/or any media platforms powered by the Company (hereinafter singly or collectively be referred to as “Platform(s)”) (The Site(s), Application(s) and the Platform(s) shall be hereinafter singly or collectively referred to as “Channel(s)”) and/or platforms operated by any third parties (“Third Party Platform”) which have been authorised by the Company to display such relevant information and in connection with the provision of marketing materials, offers, vouchers, table booking, online queuing, eMenu, job advertisement and/or any other services which are made available via the Channels or the Third Party Platform for use and/or viewing by general users (“Users”) of the Channels or users of the Third Party Platform.

1.3 The Company reserves the right to revise the Terms of Merchant Services from time to time by posting the revised version on the Channels. Once posted on the Channels, the revised Terms of Merchant Services shall become effective immediately. The Merchant’s continued use of the Channels after changes of the Terms of Merchant Services shall be deemed as the Merchant’s acceptance of the revised Terms of Merchant Services.

1.4 The Company’s provision of a non-exclusive, revocable, non-sublicenable and non-transferrable right to use the software programs, functionalities, processing and technologies of any module of the System, together in each case with any related services and materials which the Company makes available are hereinafter referred as the “Merchant Services”.

1.5 By using any of the Merchant Services and/or any module of the System, the Merchant acknowledges and agrees that it will be bound by these Terms of Merchant Services and Privacy Policy and the terms and conditions of any Service Order (hereinafter collectively be referred as the “Agreement”). In the event of any conflict among the provisions of the Terms of Merchant Services and the terms and conditions of a Service Order, the terms and conditions of the Service Order.

1.6 The Company may offer additional features and functionalities for the Merchant (“Additional Solutions”) via the System. The use of any of the Additional Solutions will also be subject to the Agreement (and in particular, the Terms of Merchant Services) and may require the Merchant to agree to additional terms and conditions specific to those Additional Solutions which may be incorporated into the Agreement.

1.7 The rights of the Merchant and the restaurant(s) or outlet(s) nominated by the Merchant (hereinafter be referred to as “Participating Restaurant(s)” or “Participating Restaurant(s)/Outlet(s)”) to use any of the Merchant Services which is non-exclusive, revocable, non-sublicensable and non-transferable, are effective from the date as stipulated in the Service Order and will be terminated on the expiry of the service period as stipulated in the Service Order or upon termination in accordance with the terms of thereof , whichever is earlier (hereinafter be referred to as “Term”). In case of any free trial of any module of the System offered to the Merchant without executing any Service Order, the Term shall be determined at the sole, absolute and unfettered discretion of the Company.

2 Provision of the Merchant Services

2.1 The Merchant Services provided by the Company shall only be used by the Merchant and the Participating Restaurant(s)/Outlet(s) during the Term.

2.2 The Merchant undertakes that it shall comply, and shall procure each Participating Restaurant(s)/Outlets (including any persons authorised by the Merchant to use the System (“Authorised User(s)”), its employees, agents and contractors (collectively as “Related Parties”)) to comply with the terms of the Agreement. The Merchant shall be fully responsible for any breach of any term of the Agreement by the Participating Restaurant(s)/Outlet(s) or the Related Parties.

2.3 The Merchant agrees that the Company shall have the exclusive right to substitute, remove, modify, enhance or upgrade part or all of the components and modules of the System at any time at its sole and absolute discretion without any notice to the Merchant and the Merchant shall have no right to object to such substitutions, removals, modifications, enhancements and/or upgrades made to the System provided that:
2.3.1 the Company gives to the Merchant reasonable notice of any changes that may materially affect the normal use of the System; and

2.3.2 such substitutions, removals, modifications, enhancements and/or upgrades will not deprive the Merchant of the standard features and functionalities of the System as at the commencement date (as stipulated in the Service Order) of its use of the related module(s) of the System.

2.4 The Company will use its reasonable efforts to ensure that sufficient capacity is maintained on its computer facilities to enable:

2.4.1 the Participating Restaurant(s)/Outlet(s) to use and access the System; and

2.4.2 the Users to access to the Channels.

2.5 The Company may at its own absolute discretion during any period of time:

2.5.1 carry out scheduled maintenance and non-scheduled maintenance of the System and the Channels; and

2.5.2 provide and carry out daily backup of the data collected and maintained by the Company solely for the Merchant (“Database”).

3. The Merchant’s Facilities
3.1 The Merchant shall be solely responsible for the provision of its and its Participating Restaurant(s)/Outlet(s)’ own internal facilities (including but not limited to terminal, mobile device, software, electricity, modem and internet connection, telecommunications facilities and hardware) (hereinafter collectively referred to as “Access Facilities”) necessary for utilising any of the relevant Merchant Services and/or any relevant module of the System.

3.2 The Company accepts no responsibility for any deficiency in or malfunction or maintenance of the Merchant’s Access Facilities.

4. The Merchant’s Representations, General Obligations and Responsibilities

4.1 The Merchant represents and warrants to the Company that:

4.1.1 it is an independent corporation duly organized, validly existing and in good standing under the laws of jurisdiction of its incorporation;

4.1.2 it and the Participating Restaurant(s)/Outlet(s) are properly registered to do business and have obtained the required permit(s), approval(s), consent(s) and license(s) (including but not limited to license to sell and serve liquor and alcoholic beverages) to provide the products and services which are displayed on the Channels and/or provided to Users pursuant to any applicable law and regulations in all jurisdictions in which they carry on business;

4.1.3 it has the corporate power, authority and legal right to execute and perform the Agreement and to carry out the transactions and its obligations contemplated hereunder;

4.1.4 its consummation of the Agreement will not conflict with any of its corporate or constitutional documents or violate any applicable law;

4.1.5 there is no litigation, proceeding or investigation of any nature pending or, to its knowledge, threatened against or affecting it, which would reasonably be expected to have a material adverse effect on its ability to perform its obligations under the Agreement;

4.1.6 any materials provided by the Merchant and its Related Parties to the Company or uploaded with the System and any products or services sold by the Merchant and the Participating Restaurant(s)/Outlet(s) do not infringe any third party’s intellectual property rights and interests;

4.1.7 the Authorised User(s) agree to the Company’s use of their personal data, such as name, email address and/or telephone number (which have been provided by the Merchant to the Company) pursuant to the Privacy Policy.

4.2 The Merchant will promptly inform the Company of any action or event of which it becomes aware that has the effect of making inaccurate, any of the Merchant’s representations or warranties as set out in Clause 4.1 above.

4.3 The Merchant shall ensure that only the Authorised User(s) who have been properly trained may log into the System and that the Authorised User(s) shall use the System in accordance with the service guidelines as may be provided by Company from time to time during the Term.

4.4 The Merchant shall maintain and procure all Related Parties to maintain the confidentiality of the username (“Username”) and password (“Password”) required to access the System. The Merchant shall be solely responsible for any use of, action taken and transactions that occur under the Username and the Password.

4.5 The Merchant shall promptly notify the Company of any changes in information about the Participating Restaurant(s)/Outlet(s) and any change in the particulars of the Corp Admin (as defined in the Service Order) in accordance with the terms of the Agreement.

4.6 The Merchant and the Participating Restaurant(s)/Outlet(s) shall fully comply with the Trade Description Act 2011, Consumer Protection Act 1999, Consumer Protection (Electronic Trade Transactions) Regulations 2012 and all other applicable laws, regulations, orders and guidelines to ensure that the information/content uploaded to the System is true, legal, valid, up-to-date, accurate, not misleading and not infringing any third party’s intellectual property rights.

4.7 The Merchant and the Participating Restaurant(s)/Outlet(s) shall provide and fulfill the terms of their services/products and/or the terms of any coupons and/or Vouchers (as defined in Clause 7.1 below) (if applicable) which shall be/are uploaded to the System for publishing on the Channels in accordance with the terms of the Agreement and the Merchant shall be solely responsible for and bear all risks relating to the transactions.

4.8 The Merchant shall be responsible for any act or omission of any Participating Restaurant(s)/Outlet(s) and the MM Point (as defined in Clause 7.1 below) in connection with the use of any offer, sale and redemption of coupon or Voucher (as defined in Clause 7.1 below), including without limitation,:

4.8.1 any failure by any Participating Restaurant(s)/Outlet(s) and/or the MM Point to honor any coupon or Voucher; or

4.8.2 the imposition of any terms and conditions on any coupon or Voucher including quality, safety, usability or any aspect of the products and/or services provided by the Participating Restaurant(s)/Outlet(s) and/or MM Point that violates any applicable laws or regulations.

4.9 The Merchant shall not upload or submit to the System any unlawful or inappropriate content, such as content related to sale of any potentially hazardous food, tobacco product or any other item prohibited by any applicable law.

4.10 The Merchant agrees that the Company shall have the right to pre-screen and approve content of any coupons, Vouchers and materials provided with the System before they are published on any Channel. The Company shall have the rights to pre-screen, refuse and/or remove from the System and/ or the Channels any content that violates any term of the Agreement or any applicable laws or regulations.

4.11 The Merchant shall promptly notify the Company of any malfunction, error or defect in the System and provide the Company with a list of output and any other data that the Company may request in order to reproduce conditions similar to those present when such error, defect or malfunction occurred.

4.12 The Merchant shall maintain procedures to facilitate the reconstruction of any lost or altered files, data or computer software, and the Merchant agrees that to the fullest extent permissible under the law, the Company shall not be liable under any circumstances for any consequences arising from lost or corrupted data, files or programs.

4.13 The Company may, from time to time, in accordance with the applicable laws and the applicable terms of the Agreement, provide personal data of Users, such as name, email address and/or telephone number (“Personal Data”) to the Merchant (based on the Merchant Services which the Merchants have subscribed for) for the purposes of enabling the Merchant and/or the Participating Restaurant(s)/Outlet(s) to arrange table booking for the Users, to facilitate queuing, to arrange and deliver services or products which have been offered by the Merchant or the Participating Restaurant(s)/Outlet(s) through the Channels

4.14 The Merchant and the Participating Restaurant(s)/Outlet(s) shall at all times properly protect all Personal Data provided by the Company or otherwise collected through the System or the Merchant Services in accordance with the applicable laws and shall at all times comply with the requirements of the Personal Data Protection Act 2010 and similar applicable laws or regulations of other countries where the Merchant and/or its Participating Restaurant(s)/Outlets may be located at otherwise that they are subject to. The Merchant shall use its best endeavors to ensure that the Personal Data is protected against misuse, loss or unauthorised access, modification or disclosure and shall make sure that the Personal Data is only accessible by staff members of the Merchant and the Participating Restaurant(s)/Outlet(s) on a need-to-know and confidential basis for the aforesaid purposes only. Unless express consent is obtained from the respective data subjects of the Personal Data, the Merchant must not and shall procure the Participating Restaurant(s)/Outlet(s), its related parties and its affiliated parties not to use any of the Personal Data for purposes other than those stated in Clause 4.13 above (and in particular, not for any direct marketing purposes).

4.15 The Merchant shall ensure maintenance and renewal of all the licenses, approvals and permits which are required in connection with the business operation of the Participating Restaurant(s) to comply with all the applicable laws and shall ensure that the Participating Restaurant(s) shall prepare, sell and provide any food and/or beverage in strict compliance with all the applicable laws, regulations, orders and standards pertaining to the food preparation, hygiene and safety applicable to restaurants’ operations.

4.16 The Merchant agrees that the Company may disclose or publish the name, address(es) and telephone number(s) of the Merchant and/or the Participating Restaurant(s)/Outlet(s), and materials which are not of a confidential nature provided by the Merchants and/or the Participating Restaurant(s)/Outlet(s) for promoting the Merchant Services.

4.17 The Merchant agrees to use its best effort to display the promotional materials, such as tent card, leaflet, sticker, banners etc. provided by the Company at the Participating Restaurant(s)/Outlet(s) for promoting the Merchant Services used by the Participating Restaurant(s)/Outlet(s).

4.18 The Merchant shall not resell or assign, subcontract or attempt to resell or assign or subcontract the Merchant Services to any parties without the prior written consent of the Company.

4.19 The Merchant shall not alter, reproduce, adapt, distribute, publish, reverse engineer, compile or attempt to create any source code that is derived from the System.

4.20 The Merchant shall pay, indemnify, and hold the Company harmless from any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty which arise from the Company’s provision of any service to the Merchant but is not based on the Company’s income. Such taxes, fees and duties paid by Merchant shall not be considered a part of, a deduction from, or an offset against, payments due to the Company under any Service Order signed between the Merchant and the Company.

5 Provisions applicable to the Merchant in utilising the Back Office Module of the System

5.1 The Merchant shall ensure that seat inventory(ies) of the Participating Restaurant(s) provided through the Back Office System is/are valid and up-to-date.

5.2 The Merchant shall honor all table bookings made through the Channels and honestly and accurately report the actual attendance of fulfilled reservations which were made via the System in a timely manner. In the event of any dishonest act of the Merchant, e.g. manipulation of the attendance record and number of seated customers in the Participating Restaurant(s), the Company shall be entitled to suspend any or all of the Merchant Services subscribed by the Merchant immediately and/or terminate the Agreement without prejudice to any other rights and remedies that may be available to the Company.

5.3 The Merchant shall not be entitled to the refund of any fees already paid pursuant to the terms of the Service Order and shall forthwith settle any unpaid charges in the event of termination of the Agreement as a result of breach of any provisions in the Agreement by the Merchant.

Merchant are not allowed to disclose this Back Office System to any third party.

Operation process will be fully responsible by merchant, eg: if merchant forget to update or any unforeseen circumstances happens that delays any action from the BO, company will not be involve in any complains or refunds request made by users.

6 Provisions applicable to the Merchant which requires Users to guarantee booking by deposit (“Deposit Collection Service”)

6.1 The Merchant shall specify the amount of deposit (“Deposit”) for specific table which is required to guarantee specific table booking that is set by the Merchant via the System.

6.2 A booking User will be required to provide details of credit card (“Credit Card”) including credit card holder’s name, credit card number and expiry date to secure the booking.

6.3 The Deposit will only be charged to the Credit Card (“Deposit Collection”) in the event of any absent (number of attendees less than the number of dining persons being reserved for will not be counted as absent) or any change or cancellation of the reservation after the deadline as pre-set by the Merchant via the System (which is deemed to be “absent”).

6.4 System will report the absent via the System (“Notification”) within 2 days after the reserved dining date, then the System will automatically send an email (“Email”) to the booking User advising him/her of the Deposit to be charged to the Credit Card. Otherwise, the reservation is deemed to be honored and no Deposit will be charged.

6.5 In case of any no-show, the Company will charge the Deposit to the Credit Card within 7 working days upon receipt of the Notification if there is no appeal lodged by the booking User.

6.6 A booking User may appeal (“Appeal”), if any, to the Company by emailing a written statement setting out grounds to justify the Appeal within 5 working days from the transmission date of the Email. The Company will then discuss with the Merchant within 3 working days upon receipt of the Appeal to confirm if the Deposit should be charged and the confirmed actions will be taken accordingly. In connection with the Appeal, the Company may carry out investigation as it shall deem appropriate whereupon the Merchant shall render all reasonable assistance, and the Company’s decision on the Appeal shall be final and conclusive.

6.7 After deducting the Deposit Handling Fee (as defined and stipulated in the Service Order) from the collected Deposit as handling fee, the Company will pay the balance of the collected Deposit to the Merchant by cheque or by any other method as agreed between the Company and the Merchant before the end of the following month.

6.8 The Company shall not be liable for any cost, loss, claim, damage, demand or action incurred or suffered by any parties directly or indirectly arising out of the collection or unsuccessful collection of any Deposit from any booking User.

7 Provisions applicable to the Merchant in utilising Voucher Transaction Module of the System

7.1 A Voucher (“Voucher”) entitles the holder of Voucher to redeem services and/or products via the Application or the Third Party Platform (as the case may be) for use at certain Participating Restaurant(s)/Outlets (“Redemption Point”) as designated by the Merchant pursuant to the Terms of Voucher (as defined in Clause 7.2 below).

7.2 The Merchant shall ensure that the terms and conditions of use of the Voucher (“Terms of Voucher”) provided through the System, including but not limited to the selling price, discounted price, conditions of use, valid period, detailed descriptions of services and/or products to be redeemed with the Voucher etc. are true, valid, up-to-date, accurate and not misleading and that the Merchant or the Participating Restaurant/Outlet shall provide the holder of the Voucher the services and/or products according to the Terms of Voucher. The Merchant agrees to indemnify and hold harmless the Company, its officers, directors, employees, agents, partners, representatives, shareholders and servants against any claims, actions, demands, liabilities, losses, damages, costs and expenses on a full indemnity basis arising from or resulting from the Merchant’s breach of this Clause 7.2.

7.3 The materials submitted by the Merchant to the System for creating a Voucher are subject to the Company’s approval before the Voucher can be displayed on the Channels or may be displayed on the Third Party Platform.

7.5 The Merchant and/or the Redemption Point are solely responsible for providing the holder of the Voucher with such services and/or products pursuant to the Terms of Voucher and in accordance with the terms of the Agreement and to deal with any claims or any issue arising from the use of the Voucher.

7.6 Upon termination of the Agreement governing the use of the Voucher Transaction Service (“Termination”), the rights and obligations of the Merchant, the Redemption Point, the Company and the user with respect to Vouchers for which Payments have been made before the Termination will survive the Termination until the obligations of the said parties have been fulfilled.

8 Provisions applicable to the Merchant in utilising the Online Queuing Module of the System

8.1 The Participating Restaurant(s) shall correctly and accurately set the ticket types (up to various types of party size) via the System and shall honor all queue tickets (“Ticket”) issued via any Channel or issued via any ticket kiosk connected to the System.

8.2 In case of any dispute between any User of the Channel and the Participating Restaurant(s) regarding the seat arrangement arising from the use of any Ticket, the Participating Restaurant(s) shall settle with such User directly and amicably. For the avoidance of doubt, the Company will not be involved in the settlement of any such disputes.

9 Provisions applicable to the Merchant utilising the Payment Module of the System

9.1 Software (“Software”), which are necessary for utilizing the Payment Module will be provided and handled by a third party service provider (“Service Provider”) which is independent from the Company,

9.2 In any event, the Company shall not be liable to the Merchant, the Participating Restaurant(s) and/or any users of the System or the Channels in respect of any loss, expense, damage, claim, demand or action (including direct or indirect, special, economic or consequential loss or damage or loss of revenue, profit, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings) which may be suffered or incurred or arise directly or indirectly in respect of the Service Provider’s performance or non-performance or caused by any service provided by the Service Provider, malfunction of any Hardware or network failure.

10 Provisions applicable to the Merchant in using any payment processing service provided by the Company or utilising any of the Online Payment Module, or Online Payment (Integrator) Module of the System

10.1 By accessing or using the Online Payment Module of the System, the Merchant acknowledges that he/she/it has read, understood and accepted these Terms of Merchant Services and agrees to be bound by them.

10.2 By accessing or using the Online Payment (Integrator) Module of the System, the Merchant acknowledges that he/she/it has read, understood and accepted these Terms of Merchant Services and agrees to be bound by them.

10.3 In respect of any Payment processed via any Channel, the Merchant agrees and acknowledges that:-

10.3.1 the Company uses third-party payment processing service provider(s) (“Payment Provider”) to process payments, to manage debit card, credit card and any e-Wallet information. The Users’ credit card, debit card or e-Wallet information will be stored with the Payment Provider and will not be made available to the Company, the Merchants or the Participating Restaurant(s)/Outlet(s);

10.3.2 the Company reserves the rights to (i) suspend, limit or terminate the Merchant’s rights to use any payment processing services via the System/the Channels including but not limited to the Deposit Collection Service or Payment Service, (ii) refuse to process any payment, (iii) reverse any payment processed via the System/the Channels, If possible, the Company may provide the Merchant with advance notice of any exercise of such rights. However, advance notice will not be provided if there is an immediate need to take any of the said actions such as circumstances of security threat, potential fraud, or illegal activity;

10.3.3 the Merchant shall be responsible for all costs and loss incurred by any disputes in relation to any unauthorised payment if such unauthorised payment is caused by or due to the Merchant and/or the Participating Restaurant(s)/Outlet(s) default with respect to any transactions processed for any of them via the System.

10.3.4 upon request by the Company for investigation of any potential fraud or suspicious unauthorised payment; or in case if there is any of any disputes raised by the related User regarding the payment, the Merchant shall comply with the following requirements:

(a) the Merchant shall provide the Company with the transaction evidence (“Transaction Evidence”), including but not limited to the names and prices of the product(s) to which the payment relates, together with relevant proof that the products have been properly delivered or rendered to the related User and transaction receipt/record, within 3 working days from the date on which the Company makes such request; and

(b) in the event that:
(i) the Company does not receive the Transaction Evidence, or
(ii) the Company deems the Transaction Evidence to be inadequate, or
(iii) the Merchant accepts any chargeback, or
(iv) the arbitration or pre-arbitration result is not in favor of the Merchant,

the amount in question will be deducted from the Settlement Amount (as defined in the Service Order) in the next settlement cycle; or upon request by the Company, the Merchant must pay to the Company immediately an amount equal to the sum which the Company settled to the Merchant’s designated bank account regarding the transaction in question.

11 Provisions applicable to the Merchant in utilising the Takeaway Module of the System (“Takeaway Service”)

11.1 The Takeaway Module of the System enables the Merchant, which has been signed up with the Company for listing and selling food and/or beverage items (“Items”) on the Channel, to receive online order (“Takeaway Order”) for the Items placed by users of the Channel and/or users of the Third Party Platform (if any, as authorised by the Company) (“Purchaser”); and to collect the related Payments from Purchasers via the Channel.

11.2 The Merchant agrees to comply with the Takeaway Service usage guidelines provided by the Company, if any.

11.3 In order to use the Takeaway Service, the Merchant agrees that the Terms of Merchant Services are binding on it and the processing of any Payments is subject to the applicable terms of Clause 10.

11.4 The Company shall not be liable in any way if the Payment Provider (as defined in Clause 10.3 of the Terms of Merchant Services) or any payment processing agents of the Merchant refuse or fail to process or accept any Payments for any reason.

11.5 The Merchant shall be responsible for all costs and loss incurred in connection with or arising from any disputes in relation to the Items provided/sold by the Merchant and/or the Participating Restaurant(s)/Outlet(s) if such dispute is caused by or due to the Merchant and/or the Participating Restaurant(s)/Outlet(s)’s breach of any term of the Agreement.

11.6 Upon request by the Company for investigation of any potential fraud, dispute or complaint filed by any Purchaser, the Merchant shall provide the information and document regarding the fulfillment of the Takeaway Order (“TO Evidence”) within 3 working days from the date on which the Company makes such request. If the Company does not receive the TO Evidence, or the Company deems the TO Evidence to be inadequate, the Company reserves the right to withhold the related Settlement Amount (as defined in the Service Order) or deduct the amount regarding the transaction in question from the Settlement Amount in the next settlement cycle for reimbursement to the related Purchaser, if appropriate; or upon request by the Company, the Merchant shall pay to the Company an amount equal to the sum which the Company settled to the Merchant’s designated bank account regarding the transaction in question.

11.7 Upon termination of the Agreement governing the use of the Takeaway Service signed between the Company and the Merchant, the rights and obligations of the Merchant, the related Participating Restaurant(s)/Outlet(s), the Company and the Purchaser with respect to Items, for which Payments have been made before the said termination, will survive the said termination until the obligations of the said parties have been fulfilled.

11.8 The Merchant shall, in addition to fulfill the obligations as set out in the Service Order, ensure that:

11.8.1 the terms of sale of the Item is at least as favorable to the Purchasers as the most favorable terms upon which the Item is offered or sold via any channels; and

11.8.2 the quality and quantity of each Item that the Merchant provides to the Purchasers are of at least the same level of quality and quantity as provided to any other customers of the Merchant and the related Participating Restaurant(s)/Outlet(s).

If the Merchant does not comply with this Clause 12.8, the Merchant will promptly compensate adversely affected Purchasers by making appropriate refunds of the Payments to them.

11.9 The Merchant shall be solely responsible for any performance, non-performance or other mistake or act in connection with the fulfilment of any Takeaway Order. An acknowledgment of receipt of the Takeaway Order shall be delivered by the Merchant to the Purchasers without undue delay.

12 Provisions applicable to the Merchant in utilising the Scan-to-Order Module of the System (“Scan-to-Order Service”)

12.1 The Scan-to-Order Module of the System enables the Merchant, which has been signed up with the Company for listing and selling Items on the Channel, to receive self-ordering order (“Scan-to-Order”) at its Participating Restaurant(s) for the Items placed by Purchasers; and to collect the related Payments from Purchasers via the Channel.

12.2 The Merchant agrees to comply with the Scan-to-Order Service usage guidelines provided by the Company.

12.3 In order to use the Scan-to-Order Service, the Merchant agrees that the Terms of Merchant Services are binding on it and the processing of any Payments is subject to Clause 10.

12.4 The Company shall not be liable in any way if the Payment Provider (as defined in Clause 10.3 of the Terms of Merchant Services) or any payment processing agents of the Merchant refuse or fail to process or accept any Payments for any reason.

12.5 The Merchant shall be responsible for all costs and loss incurred in connection with or arising from any disputes in relation to the Items provided/sold by the Merchant and/or the Participating Restaurant(s)/Outlet(s) if such dispute is caused by or due to the Merchant and/or the Participating Restaurant(s)/Outlet(s)’s breach of any term of the Agreement.

12.6 Upon request by the Company for investigation of any potential fraud, dispute or complaint filed by any Purchaser, the Merchant shall provide the information and document regarding the fulfillment of the Scan-to-Order (“SO Evidence”) within 3 working days from the date on which the Company makes such request. If the Company does not receive the Evidence, or the Company deems the Evidence to be inadequate, the Company reserves the right to withhold the related Settlement Amount (as defined in the Service Order) or deduct the amount regarding the transaction in question from the Settlement Amount in the next settlement cycle for reimbursement to the related Purchaser, if appropriate; or upon request by the Company, the Merchant will pay to the Company an amount equal to the sum which the Company settled to the Merchant’s designated bank account regarding the transaction in question.

12.7 Upon termination of the Agreement governing the use of the Scan-to-Order Service signed between the Company and the Merchant, the rights and obligations of the Merchant, the related Participating Restaurant(s)/Outlet(s), the Company and the Purchaser with respect to Items, for which Payments have been made before the said termination, will survive the said termination until the obligations of the said parties have been fulfilled.

12.8 The Merchant shall, in addition to fulfill the obligations as set out in the Service Order, ensure that:

12.8.1 the terms of sale of the Item is at least as favourable to the Purchasers as the most favourable terms upon which the Item is offered or sold via any channels; and

12.8.2 the quality and quantity of each Item that the Merchant provides to the Purchasers are of at least the same level of quality and quantity as provided to any other customers of the Merchant and the related Participating Restaurant(s)/Outlet(s).

If the Merchant does not comply with this Clause 13.8, the Merchant will promptly compensate adversely affected Purchasers by making appropriate refunds of the Payments to them.

12.9 The Merchant shall be solely responsible for any performance, non-performance or other mistake or act in connection with the fulfilment of any Scan-to-Order. An acknowledgment of receipt of the Scan-To-Order shall be delivered by the Merchant to the Purchasers without undue delay by way of electronic email.

13 Merchant subscribing package

13.1 An annual fee for first (1st) year’s subscription shall be paid by the Merchant on the day on which the Merchant subscribes for the package and the annual fee for subsequent year’s subscription shall be paid by the Merchant on the expiry of the first (1st) year. For illustrative purposes, if a Merchant signs up the package on 13 October 2019, such Merchant shall pay the first (1st) year’s annual fee on 13 October 2019 and the next payment for subsequent year’s subscription on 12 October 2020.

13.2 The Merchant’s account shall be deactivated in the event that the annual fee has been due and payable for one (1) month. The Company reserves its absolute right to continue deactivating such account until the Merchant makes the payment of annual fee. The Merchant may contact the Company’s customer service department for further assistance.

13.3 In the event a Merchant intends to share the usage of the Package with its different branches or outlets, an additional fee of RM100.00 per branch or outlet shall be payable to the Company. The Company reserves its right to revise or review the quantum of such additional fee.

14. Queue Package

14.1 Queue package fee is a separate fee chargeable monthly to the Merchant.

14.2 The Company offers different queue packages which allocate different number of queues counts at different package fee for subscription.

14.3 A queue package shall be valid for one (1) month only and any remainder queue counts which have not been utilized by Merchant shall not be brought forward to the subsequent month.

14.4 In the event that a Merchant has utilized all the queue counts allocated under the package subscribed, additional fee of RM1.20 shall be chargeable for each and every additional queue count required by the Merchant.

14.4 Only “Successful” queues shall be taken into account in determining the queue counts allocated under the package subscribed.

14.5 If a Merchant cancels 30 queues and more within a week, such Merchant shall be required to give full particulars on the reasons of cancellation to the Company.

14.6 Extra charges shall be required to be paid by the Merchant or there shall be a suspension of account should the Company deem the reason given invalid.

15 Change of Transaction Fee

15.1 The rates and basis of the Transaction Fee payable by Merchant to Company are dependent on, among others,

15.2 the different Company's charges and fees in packages offered to the Merchant, and is therefore, subject to the merchant agreement between Company and the said Merchant.

15.3 Company may change the rates or basis of its Transaction Fee at any time provided always that Company will notify Merchant of the change of Transaction Fee by issuing a Master Merchant Transaction Fees Change Notice.

16 Cancellation and Refund of Order

16.1 Merchant may cancel orders made by the Users if the product or service is not available for whatsoever reason. Merchant shall notify such Users via Back Office, whereby the payment made by such Users by way of My Mage digital wallet will be refunded to the Users’ My Mage digital wallet. As for payment made by credit card, Merchant shall send an email to the Company at cs@my-mage.com to request for a refund.

16.2 There shall be a refund processing fee required to be paid by the Merchant to the Company once the refund request by User or Merchant is deemed valid and subsequently processed by the Company. Such refund processing fee shall be two point five per centum (2.5%) of the amount to be refunded (“Refund Processing Fee”) and the Company shall be entitled to set off directly the Refund Processing Fee against the amount to be refunded. For the avoidance of doubt, the Refund Processing Fee shall only be charged if the User made payments by using FPX/ Online Banking transaction.

16.3 Merchant reserves the right to cancel any incoming and advance order provided always that it shall inform the Company of the valid reason behind the cancellation. If the cancellation is due to reasons such as inaccurate information or a history of dishonest, fraudulent activities and etc., the Company reserves its right to investigate further.

16.4 The Company reserves the right to review any cancellation and refund of order and amend any of the following terms and conditions from time to time.

17 Settlement

17.1 Any payment payable to the Merchant by the Company shall be settled weekly on every Friday (excluding public holidays). Payment shall be made on the next working day if a public holiday falls on Friday. Whereby every Thursday 11.59pm will be our cut off for the week.

18 Edit Calling Time

18.1 The Company reserves the right to investigate any edited calling time and may take the necessary action if needed.

19 Force Majeure

19.1 “Force Majeure Event” means act of God, war, act of foreign enemies, terrorists attack, riot, civil commotion, strike, lockout, other labour disturbance (including those involving or affecting the Company), acts of local government and parliamentary authority, shortage of supplies, components and materials or any other circumstances beyond the reasonable control of the Company.

19.2 The Company shall in no event be liable for any delay or failure to provide any Merchant Services pursuant to any terms of the Agreement due to a Force Majeure Event.

19.3 If a delay or failure of the Company to perform its obligations is caused or anticipated due to a Force Majeure Event, the performance of Company’s obligations will be suspended accordingly.

20 Intellectual Property Rights

20.1 The intellectual property rights in the System and all the Channels (“Company IP Rights”) including without limitation:

20.1.1 any material (including but not limited to Company’s software, documentation, templates, data, design, element graphics, formatting or CGIs) which is incorporated into or which has been used in the course of developing or operating the System and the Channels; and

20.1.2 the user interface of the Channels and the System, shall vest in the Company and/or its holding company.

20.2 Without prejudice to Clause 15.1 above, the intellectual property rights in any data, logo, design, graphic and/or any other related materials (“Information”) owned and provided by the Merchant and/or the Participating Restaurant(s)/Outlet(s) shall vest in the Merchant. The Merchant and the Participating Restaurant(s)/Outlet(s) grant a non-exclusive license to the Company to use their trademark and other intellectual property on the Channels for listing purposes.

20.3 The Merchant undertakes that it shall not directly or indirectly infringe nor permit its Related Parties to infringe the Company IP Rights under any circumstances.

20.4 Without prejudice to the other provisions under this Clause 15, the Merchant further warrants and undertakes that the Information supplied to the Company hereunder or in connection herewith for use in the System and/or the Channels does not and shall not infringe any intellectual property rights and any other right of any third party (including but not limited to any registered or unregistered trademark, patent, copyright or design).

21 Confidentiality

21.1 The Merchant, the Company and their respective related parties shall keep confidential and not make use of any information and data of a confidential nature of the other party or treated as confidential by the other party, including without limitation information related to the Service Order and the System, developmental, technical, product, sales, marketing, promotional, operating, performance, cost, policy, financial, business, process and other proprietary information, trade secrets, know-how, customers and customer information of the other party (“Confidential Information”) and shall procure its officers, employees, agents and sub-contractors to keep such information confidential, save for the purposes of and only to the extent necessary for the due performance of the receiving party’s obligations under the Agreement.

21.2 A party shall not be in breach of Clause 16.1 above in circumstances where it is compelled by any applicable laws, regulations or orders given by any court, government authority or regulatory body of competent jurisdiction or otherwise required by any relevant financial institutions in connection with the performance of or any transactions contemplated under the Agreement to disclose the other party’s Confidential Information.

21.3 Notwithstanding any other provision of this Clause 16, the Company and the Merchant may disclose any Confidential Information of the other party to its related companies, solicitors, auditors, insurers or accountants on a need-to-know basis and shall procure that such related companies, solicitors, auditors, insurers or accountants shall thereafter be under a duty of confidentiality.

22 Content License

The Merchant grants the Company a non-exclusive, worldwide, royalty-free right and license to use, publish, host, display, adapt, modify, promote, copy, download, sub-license, forward, distribute, reproduce, transfer and/or edit materials and content provided to the Company and/or uploaded to the System by the Merchant and/or the Participating Restaurant(s)/Outlet(s) for use in the Channels related to the provision of Merchant Services, including without limitation, for marketing, promoting and redistributing and using such information for analytics in any media as the Company deems appropriate.

23 Liability of the Company

23.1 Nothing in the Agreement shall operate to exclude or restrict any party’s liability for death or personal injury resulting from negligence or fraud.

23.2 Subject to Clause 18.1 above and to the fullest extent permitted by law, the Company shall not be liable to the Merchant or its Related Parties in respect of any loss, damage, claim, demand or action (including direct or indirect, special, economic or consequential loss or damage or loss of revenue, profit, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings) which may be suffered or incurred or which may arise directly or indirectly in respect of the Company’s performance of the Agreement or any activity contemplated by the Agreement whether for breach of contract, tort (including without limitation negligence) or under any statutes or otherwise and whether or not the Company was made aware of the possibility of such loss, damage, claim, demand or action or should have been aware of that possibility.

23.3 Notwithstanding anything to the contrary in the Agreement, to the fullest extent permitted by law, the aggregate liability of the Company, including for claims, expenses, damages or obligations, under or in relation to the provision of the Merchant Services, the Agreement, the performance of the Agreement or any activity contemplated by the Agreement, whether for breach of contract, tort or under any statute or otherwise in any calendar year shall in no event exceed the total fees paid by the Merchant to the Company in that calendar year.

23.4 The Merchant confirms that it has not relied on any representation made by the Company which has not been stated expressly in the Agreement or upon any descriptions, illustrations or specifications contained in any document, including without limitation catalogues or publicity matter produced by the Company.

23.5 To the fullest extent permitted by law, the Company shall not be liable for any loss, claim, damage, demand or action directly or indirectly arising out of any visit or non-visit to the Participating Restaurant(s)/Outlet(s) by any Users, any Users’ use of services and/or products provided by the Merchants and/or Participating Restaurant(s)/Outlet(s) via the Channels, nor liable or responsible for or be obliged to get involved in any disputes between the Participating Restaurant(s)/Outlet(s) and any parties arising out of or in the connection with the use of any Merchant Services and/or the sale of any goods or services or vouchers offered by the Merchant and/or the Participating Restaurant(s)/Outlet(s).

24 Indemnity

24.1 Merchant shall at all times indemnify and hold harmless Company and its officers, employees, agents and contractors from and against any loss (including legal costs and expenses), damage, settlement, claim or liability incurred or suffered as a result of:

24.1.1 a breach by the Merchant of any obligations under the Agreement;

24.1.2 any willful, unlawful or negligent act or omission of the Merchant or its Related Parties;

24.1.3 any breach or inaccuracy in any of the Merchant’s representations, undertakings or under the Agreement;

24.1.4 the Merchant or the Related Parties’ negligence or willful misconduct; or

24.1.5 any action, complaint, liability or claim, including claims for personal injury, sickness, death or property damage, brought by (i) any party in connection with his/her use of any offer, coupon, Voucher, table booking and/or queuing service and/or spot payment service and/or any other service made available on the Channels through the Merchant and/or the Participating Restaurant(s)/Outlet(s)’ use of the Merchant Services or arising from his/her consumption of any service or goods at or provided by the Participating Restaurant(s)/Outlet(s); or (ii) any party which relates to all or any part of the Information, including but not limited to leakage of information from the Database or any infringement of intellectual property rights, defamation or misappropriation of trade secrets caused by any act of the Merchant or any of the Related Parties.

25 Disclaimer

25.1 The Merchant acknowledges that the Merchant Services are computer network based services which may be subject to outages and delay occurrence. As such, the Company does not warrant that the Merchant Services, the System and the Channels will be uninterrupted or error-free.

25.2 The Company does not accept any responsibilities or liabilities, whatsoever for any network problems, system or hardware failures, mobile telephone connection problems or interferences due to third party applications or system or hardware which may result in the Merchant Services being affected or unavailable.

25.3 The System and the Channels, including all content, software, functions and modules in connection with the Merchant Services are provided “as-is” (subject to any substitutions, removals, modification, enhancements and upgrades that the Company may make from time to time) without any warranties of any kind. To the fullest extent permitted by law, the Company disclaims all regarding merchantability, non-infringement of third party rights, fitness for particular purpose or about the accuracy, reliability, completeness or timeliness of the System and the Channels. The Merchant hereby agrees to assume the entire risk as to the quality and performance of the Merchant Services and that the Company shall not be liable if the System and/or the Channels are or is unavailable to the Merchant, the Participating Restaurant(s)/Outlet(s) or users of the System or the Channels for whatsoever reason.

26 Termination

Upon service termination Merchant will have to write in an email prior 2 weeks advance notice to Company. There is no refund on the services that was left over in merchant’s account upon termination.
Without prejudice to any other rights which the Company shall/ may have under the Agreement or at law or in equity, the Company may terminate the Agreement (i) for any reason, by giving 2 weeks advance notice in writing to the Merchant; or (ii) immediately by notice in writing to the Merchant if the Merchant is in breach of any term of the Agreement and that if such breach is capable of being remedied, such breach is not remedied within fourteen (14) days of it being notified by the Company.
27 Survival

Clauses 4.14, 16, 18, 19, 20 and other terms which by their nature should survive, shall survive termination of the Agreement.

28 Severability

In the event any provision of the Agreement is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of the Agreement shall not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there shall be added as part of the Agreement one or more provisions as similar in terms as may be legal, valid and enforceable under the applicable law.

29 Governing Law and Dispute Resolutions

29.1 These Terms of Merchant Services and any dispute or matter arising from or incidental to the use of the Channels shall be governed by and construed in accordance with the laws of Malaysia.

29.2 Any dispute, controversy or claim arising out of or relating to the Terms and Conditions including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the arbitration rules of Asian International Arbitration Centre (formerly known as Kuala Lumpur Regional Centre for Arbitration), which rules are deemed to be incorporated by reference into this Clause 29.

29.3 The appointing authority shall be Asian International Arbitration Centre (formerly known as Kuala Lumpur Regional Centre for Arbitration) (hereinafter referred to as "AIAC"); or alternatively, an appointing authority may be appointed by the Company at its sole and absolute discretion in any country which the Company considers as fit and appropriate. Any User(s) who are in dispute with the Company acknowledge(s) and agree(s) that the choice of appointing authority nominated by the Company shall be final and conclusive.

29.4 The place of arbitration shall be in Kuala Lumpur, Malaysia.

29.5 There shall be only one arbitrator.

29.6 The language to be used in the arbitral proceedings shall be English.

29.7 In the event of any breach of these Terms of Merchant Services by any one party, the other party shall be entitled to remedies in law and equity as determined by arbitration.

30 Rights of Third Parties

Except as expressly set forth herein, no person other than the parties to a Service Order shall have any right to enforce any term of the Agreement.

31 Enquiries

For any query, please contact us at cs@my-mage.com