GENERAL TERMS & CONDITIONS
1. Definitions and Application of the General Terms and Conditions
1.1 The following words shall have the following definitions.
“Customer” means an Entity which applies or purchases any product or service.
“Customer Agreement” means the agreement between the Customer and the Supplier relating to a Product, which shall comprise:
i) the General Terms & Conditions (this document),
ii) any applicable Product Terms & Conditions,
iii) any applicable End User Licensing Terms,
iv) any applicable Order Forms, executed by the Customer and accepted by the Supplier, and
v) any other terms and conditions otherwise agreed by the Customer and Supplier in writing.
“End User Licensing Terms” means the end user licensing terms of the Principal, which is available in their respective websites or otherwise stated.
“Entity” includes any individual, association, partnership, private or public corporation, or any government department.
“Fees” means fees or charges associated with the purchase of a Product, as set out in the Customer Agreement, including any additional charges which may be imposed by the Supplier or the Principal.
“Force Majeure” means any event which the Supplier is unable to control or avoid by the use of reasonable diligence, including but not limited to the failure of the Principal or any third party, natural disasters, fire, flood, riots or civil unrest, change in any Law, terrorism, and acts of God.
“Law” means the laws of Malaysia with exclusive jurisdiction of the Malaysian courts.
“Order Forms” means the order forms required by the Supplier, and to be completed by the Customer for the purpose of purchasing of a Product from the Supplier.
“Principal” means the third party organisation in which the Supplier has reseller agreements to resell their products.
“Product” means the product(s) and/or service(s) which the customer is purchasing from the Supplier which include but not limited to, imagery, information products, subscription services and tasking products.
“Product Terms & Conditions” means the terms and conditions of the applicable Product, which includes the Principal’s product terms and conditions. In the absence of the Supplier’s Product Terms & Conditions, the Principal’s Product terms and conditions shall apply.
“Supplier” means M Sand Heritage Sdn Bhd, a company incorporated in Malaysia under the Companies Act, 1965 having its registered address at 28, Jalan 22/36, Taman Lin Seng, 46300 Petaling Jaya, Selangor, Malaysia and/or its related corporations, as may be applicable and includes their successors, assigns, and employees.
“Taxes” means all taxes (including but not limited to goods and services taxes), duties, levies and any other similar charges imposed on the Fees payable to the Supplier by the Customer
1.2 If there is any conflict or inconsistency in the provisions of the terms found in the Customer Agreement, such conflict or inconsistency shall be resolved in a manner most favourable to the Supplier to the extent of such inconsistency or conflict, subject always to restrictions under any applicable Law.
1.3 All the singular shall include the plural where explicitly or inexplicitly implied.
2. Payment terms and taxes
2.1 All quotations are subject to changes without notice and shall not be construed as legally binding.
2.2 The Supplier will invoice the Customer the applicable Fees for the Product as per the Customer Agreement.
2.3 The Customer shall promptly pay the Supplier the Fees and any other sums due and payable to the Supplier, without any set off, deduction, counterclaim, or withholding, whatsoever.
2.4 All Fees are due upfront in advance upon execution of a Customer Agreement.
2.5 Where applicable, the Supplier may charge the Customer interest at 2% per month on any outstanding fees due and payable to the Supplier by the Customer, from the date when the amount had become due and payable to the date when the amount is deposited into the Supplier’s bank account.
2.6 The Customer is responsible for and shall pay any and all applicable bank charges and taxes, including but not limited to goods and services taxes, value added taxes, service taxes and withholding taxes.
2.7 If the Customer is required by any applicable Law to withhold or deduct any sums as taxes in respect of the Fees due to the Supplier, the Customer must factor in such deductions and ensure that the Supplier receives a net amount equal to the amount which the Supplier would have received in the absence of such withholding or deductions.
3.1 All invoices will be emailed to the Customer and shall be deemed to have been received by the Customer on the date and time of the email sent out by the Supplier.
3.2 The Customer acknowledges and agrees that only the softcopy of the invoice will be emailed to the Customer and there will not be any hardcopy provided by the Supplier.
3.3 The Customer shall promptly check the accuracy of the invoice or invoices and shall notify the Supplier in writing with details of any error or discrepancies within 7 calendar days from the date the email was sent out by the Supplier.
3.4 All payment in advance or prepayment invoices shall be due immediately once it is emailed out, and the Supplier will accept and process the Order Forms once full payment has been made and the funds are available in the Supplier’s bank account. All other invoices shall be due within the period prescribed herein or in the absence of such a prescribed period, within 14 days from the date the invoice was emailed out.
4. Order Forms
4.1 The Customer is responsible for ensuring all fields in the Order Forms are completed in accordance to their requirements.
4.2 The Supplier is not obliged to execute any Order Forms in the absence of a Customer Agreement. The Supplier’s acknowledgement of receipt of the Order Forms shall not constitute an agreement or acceptance of the Order Forms.
4.3 Upon acceptance of the Order Forms by the Supplier, the Supplier shall execute the Customer Agreement within such time or period the Supplier may determine having regard to the circumstances and resources available, not withstanding any time or period that may have been specified by the Customer.
4.4 At the sole discretion of the Supplier, the Supplier may impose such fees in respect of any deferment, cancellation, amendment, or reprocessing of a Customer Agreement by the Customer.
4.5 Once a Product is delivered in accordance to the Customer Agreement, the Supplier’s obligation on the Customer Agreement is deemed to have been fulfilled.
5.1 The Product is provided on an “as is” basis and the Supplier makes no express or implied representation or warranties in relation to the Product, including but not limited to:
5.1.1 all warranties of legality, merchantability, satisfaction, fitness for purpose, title, licensing, non-infringement and compatibility of the Product;
5.1.2 the security, availability, accessibility, timeliness, error-free and uninterrupted use of the Product;
5.1.3 the truth and accuracy of the Product or subsequent modifications thereto;
5.1.4 any deletion, non-delivery or failure to store any user communications or personalised settings;
5.1.5 the inability to use the Product or inability to receive any messages received or transactions entered through the Product;
5.1.6 the accuracy and reliability of results obtained from the use of the Product and that any errors in the software will be corrected; and
5.1.7 any obligation, liability, right, claim in tort or otherwise whether or not arising from the negligence of the Supplier.
5.2 To the full extent permitted by law, the Supplier disclaim any and all such warranties.
6. End User Licensing Terms
6.1 The End User Licensing Terms shall be made available by the Principal on their respective websites. In the event that the End User Licensing Terms is not available or cannot be found for any reason whatsoever, it is the Customer’s responsibility to request for these End User Licensing Terms.
6.2 The Customer is to ensure that the proper or correct end user license is purchased in accordance to the end user’s use case.
6.3 The Customer would have deemed to have understood the End User Licensing Terms and have provided and explained such terms to the end user.
7 Indemnity & Liability
7.1 The Customer shall fully indemnify and hold harmless the Supplier against all actions, claims, proceedings, costs (including but not limited to legal costs incurred by the Supplier to defend any such actions, claims or proceedings), liability, losses and damages whatsoever which may be brought against the Supplier by any person or organization, in connection with or by reason of:
7.1.1 the use of the Product by the Customer, the end user, or any other person or organization;
7.1.2 any statements or material circulated by the Customer, the end user, or any other person or organization, in the course of the use of the Product;
7.1.3 breach of any license restrictions of the End User Licensing Terms by the Customer, the end user, or any other person or organization;
7.1.4 the enforcement by the Supplier of any rights against the Customer under any Customer Agreement and/or any proceedings commenced by the Supplier for such purpose.
7.2 The Supplier shall not be liable in any way to the Customer or the End User, for any breach of contract, indemnity or warranty whether expressively implied or otherwise, or in tort (including negligence and breach of statutory duty) or otherwise for any direct or indirect economic loss including but not limited to the loss of revenue, profits, business or any consequential loss or indirect loss.
7.3 The Supplier shall not be liable in any way to the Customer or the End User, for any breach of contract, indemnity or warranty whether expressively implied or otherwise, or in tort (including negligence and breach of statutory duty) or otherwise arising from,
7.3.1 any delay in the delivery of the Product;
7.3.2 any loss, corruption, or incompleteness of the Product;
7.3.3 any Force Majeure event;
7.3.4 any loss, corruption or deletion of any data or information provided by the Customer;
7.3.5 the retention, collection, use, disclosure of any data by the Supplier for any purpose relating to the Order Form or Customer Agreement;
7.3.6 any error, omission or inaccuracy in any information provided by the Supplier to the Customer, the end user or any other person or organization, in connection with the Product.
8.1 The Customer shall not transfer or assign any or all of its rights, interests and obligations without the prior written consent of the Supplier.
8.2 The Customer agree and consent that the Supplier may assign any, or any part of the Supplier rights and obligations to any third party by notice in writing to the Customer. Your continued usage of the Product after such notice shall be deemed as your consent to the assignment.
9.1 We may communicate with you for any matter under this agreement or the Products by email to your contact details in our records or by such means as we may notify you from time to time. If there is any change in these details, you must inform us immediately in writing.
9.2 Unless you notify us otherwise, we may send you information on offers and marketing/promotional material relating to any of the Products, and such information and materials will not be deemed to be unsolicited.
10. Governing Law
10.1 All Customer Agreements shall be governed by and construed in accordance with the laws of Malaysia and you agree to submit to the exclusive jurisdiction of the Malaysian courts.
10.2 By accessing, viewing, downloading, evaluating or using the Products, you agree that such access and/or use, shall be governed by and construed in accordance with the laws of Malaysia and you agree to submit to the exclusive jurisdiction of the Malaysian courts.
Version Number 10.3 dated 24 Feb 2021