This Agreement is entered into by and between Kognifi Sdn Bhd, a Malaysian limited liability company (“Kognifi”) and you, and is made effective as of the date of your use of this website (“Site”).
The terms “we”, “us” or “our” shall refer to Kognifi. The terms “you”, “your”, “user” or “customer” shall refer to any individual or entity who accepts this Agreement, has access to your account (“Account”) or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
This Universal Terms of Service Agreement (“Agreement”) sets forth the terms and conditions of the use and consumption of our systems, software, platforms, APIs, information, processes, support and the use and/or purchase of our products and related services and for the purchase and/or use of any products and services acquired through Kognifi from our partners, related parties and/or affiliates (collectively “Services”).
Services Agreements and additional policies apply to certain Services and are in addition to (not in lieu of) this Agreement. In the event of a conflict between the provisions of a Services Agreement and the provisions of this Agreement, the provisions of the applicable Services Agreement shall control.
This Agreement explains our obligations to you, and explains your obligations to us for using our Services. These obligations are in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services.
When you use our site, your account to purchase or otherwise acquire access to Services or to cancel your Services (even if we were not notified of such authorization), you signify your agreement to the terms and conditions contained in this Agreement, along with the following policies and the applicable product agreements, which are incorporated by reference herein.
2. Modification Of Agreement, Site Or Services
Kognifi may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services.
In addition, Kognifi may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account (“Account”) information current and your email account used, in good standing. Kognifi assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address or an email account not in good standing. In addition, Kognifi may terminate your use of Services for any violation or breach of any of the terms of this Agreement by you. Kognifi reserves the right to modify, change, or discontinue any aspect of this site or the services, including without limitation prices and fees for the same, at any time.
3. Eligibility And Authority
This Site and the Services are available only to individuals or entities (“users”) who can form legally binding contracts under applicable law. By using this Site or the Services, you represent and warrant that you are (i) at least eighteen (18) years of age, (ii) otherwise recognized as being able to form legally binding contracts under applicable law, or (iii) are not a person barred from purchasing or receiving the Services found under the laws of Malaysia, the United States or other applicable jurisdiction.
If you are entering into this Agreement on behalf of a corporate entity, you represent and warrant that you have the legal authority to bind such corporate entity to the terms and conditions contained in this Agreement, in which case the terms “you”, “your”, “user” or “customer” shall refer to such corporate entity. If, after your electronic acceptance of this Agreement, Kognifi finds that you do not have the legal authority to bind such corporate entity, you will be personally responsible for the obligations contained in this Agreement, including, but not limited to, the payment obligations.
Kognifi shall not be liable for any loss or damage resulting from Kognifi’s reliance on any instruction, notice, document or communication reasonably believed by Kognifi to be genuine and originating from an authorized representative of your corporate entity. If there is reasonable doubt about the authenticity of any such instruction, notice, document or communication, Kognifi reserves the right (but undertakes no duty) to require additional authentication from you.
You further agree to be bound by the terms of this Agreement for transactions entered into by you, anyone acting as your agent and anyone who uses your account or the Services, whether or not authorized by you.
4. Account Use
In order to access some of the features of this Site or use some of the Services, you will have to create an Account. You represent and warrant to Kognifi that all information you submit when you create your Account is accurate, current and complete, and that you will keep your Account information accurate, current and complete. If Kognifi has reason to believe that your Account information is untrue, inaccurate, out-of-date or incomplete, Kognifi reserves the right, in its sole and absolute discretion, to suspend or terminate your Account.
You are solely responsible for the activity that occurs on your Account, whether authorized by you or not, and you must keep your Account information secure, including without limitation, your customer number/login, passwords, payment method, and any communications with us.
For security purposes, Kognifi recommends that you change your passwords per best practices as published by legally authoritative cybersecurity organizations. You must notify Kognifi immediately of any breach of security or unauthorized use of your Account. Kognifi will not be liable for any loss you incur due to any unauthorized use of your Account. You, however, may be liable for any loss Kognifi or others incur caused by your Account, whether caused by you, or by an authorized person, or by an unauthorized person.
You are responsible for security of your Account access credentials. Kognifi will not change passwords to any account. Should you need to restore access to your account, you will need to provide us with appropriate identification, as determined by us in our sole discretion, and we will initiate a password reset process for you to complete. In the event of any partnership break-up, divorce or other legal problems that includes you, you understand that Kognifi will remain neutral and may put the account on hold until the situation has been resolved. Under no circumstances will Kognifi be liable for any losses incurred by you during this time of determination of ownership, or otherwise. You agree to defend (through counsel of our choosing), indemnify and hold harmless Kognifi from any and all claims arising from such ownership disputes. If you are required to supply or transmit sensitive information to Kognifi you should take all due precautions to provide any sensitive information over a secure communication channel.
If you are visiting this Site and/or using our Services from a country other than the country in which our various servers, applications, people and cloud platforms are located, your communications with us may result in the transfer of information (including your Account information) across international boundaries. By visiting this Site, using our Services and communicating electronically with us, you consent to such transfers.
5. General Rules Of Conduct And Acceptable Use
You acknowledge and agree to use our Services as follows:
- Your use of this Site and the Services is for lawful purposes per the laws of Malaysia, the United States and applicable jurisdictions.
- Any content whatsoever you place or submit, will comply with this Agreement, any applicable Services Agreement or policy that may apply to your Services and all applicable local, state, national and international laws, rules and regulations.
- You will not collect or harvest (or permit anyone else to collect or harvest) any user Content (as defined below) or any non-public or personally identifiable information about another user or any other person or entity without their express prior written consent.
- You will not use this Site or the Services in a manner (as determined by Kognifi in its sole and absolute discretion) that:
- Is illegal, or promotes or encourages illegal activity that violates the laws of Malaysia, the United States and internationally accepted laws, ethics, regulations and sanctions;
- Promotes, encourages or engages in the exploitation of children, or any activity related to the proliferation of child sexual abuse material (CSAM);
- Violates the US Fight Online Sex Trafficking Act of 2017 or similar legislation, or promotes or facilitates prostitution and/or sex trafficking where it is illegal;
- Promotes, encourages or engages in fake news, terrorism, hate, murder and violence against people, animals, religious and ethnic groups or property;
- Violates the US Ryan Haight Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages or engages in the sale or distribution of prescription medication without a valid prescription;
- Promotes the sale, distribution or consumption of illegal drugs and substances per Malaysian or International laws;
- Promotes the sale or distribution of weapons or firearms per Malaysian or International laws;
- Infringes on the intellectual property rights of another user or any other person or entity;
- Violates the privacy or publicity rights of another user or any other person or entity, or breaches any duty of confidentiality that you owe to another user or any other person or entity;
- Promotes, encourages or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
- Interferes with the operation of this Site or the Services found at this Site;
- Contains or installs any viruses, worms, bugs, Trojan horses or other code, files, malware or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; or
- Contains false or deceptive language, or unsubstantiated or comparative claims, regarding Kognifi or Kognifi’s Services.
- Perform any false, abusive or fraudulent activity. You will not perform any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure;
- You will not copy or distribute in any medium any part of this Site or the Services , except where expressly authorized by Kognifi.
- You will not modify or alter any part of this Site or the Services found at this Site or any of its related technologies.
- You will not access Kognifi Content (as defined below) or user Content through any technology or means other than through this Site itself, or as Kognifi may designate.
- You agree to back-up all of your user Content so that you can access and use it when needed. Kognifi does not warrant that it backs-up any Account or user Content, and you agree to accept as a risk the loss of any and all of your user Content.
- You will not re-sell or provide the Services for a commercial purpose, including any of Kognifi’s related technologies, without Kognifi’s express prior written consent.
- You will not to circumvent, disable or otherwise interfere with the security-related features of this Site or the Services found at this Site (including without limitation those features that prevent or restrict use or copying of any Kognifi Content or user Content) or enforce limitations on the use of this Site or the Services found at this Site, the Kognifi Content or the user Content therein.
- You agree to provide government-issued photo identification and/or government-issued business identification as required for verification of identity when requested.
- You agree that we have the sole right to decide what constitutes a violation of acceptable use of our Services
We may contact you about your account, and that, for the purposes of any and all such calls, you may be subject to call recording and hereby consent to the same, subject to any applicable laws. To the extent permitted by applicable law, any such recordings may be submitted as evidence in any legal proceeding in which Kognifi is a party. Further, by providing your email, telephone or mobile number, you consent to receive communications from or on behalf of Kognifi.
6. Account or Services Termination
Kognifi expressly reserves the right to deny, cancel, terminate, suspend, or limit future access to this Site or any Services (including but not limited to the right to cancel or transfer any domain name registration) to any user due to breach of this or any other Agreement or any Kognifi policy.
If your purchase or account activity shows signs of fraud, abuse or suspicious activity, Kognifi may cancel any service associated with you or your account and close any associated accounts with us. If you conducted any fraudulent activity, we reserve the right to take any necessary legal action and you may be liable for monetary losses to us including litigation costs and damages. To contest cancellation of Services or freezing or closure of an account, please contact Support.
Kognifi provides customer support to you for related to Kognifi Services only. Kognifi has the right to decide what is a service related issue and to charge additional fees or refuse support. Any fees paid by you for support are non-refundable. We require, before assistance can be given, that you verify your identity in relation to the Account in question. We will determine, in our sole and absolute discretion, what must be provided for verification purposes, including the use of validation tools and legal identification processes.
We use a helpdesk support ticket tracking system. Unless otherwise directed by a specific Service, you can request customer support only by support ticket located in the logged in client area. Kognifi will have no liability to provide customer support if it is requested in any other way apart from the helpdesk system or the instructions specific to the Service at issue.
Kognifi will have no liability to respond to tickets opened in inappropriate categories. Kognifi shall not be liable for the response time for tickets opened. You acknowledge that by asking our customer support representatives for assistance, you authorize their intervention and operation in your account.
You must provide Kognifi with all information and access to facilities that Kognifi may reasonably require to provide the requested customer support. You are solely liable for performing and storing a back-up copy of data, files, hosting account and any other content prior to requesting customer support and agreeing to any interference or operation, provided by Kognifi. In the event you are not satisfied with the outcome of any action you shall be solely responsible for restoring the back-up copies of your data.
You should not abuse the helpdesk system. Abuse of the helpdesk system includes, but is not limited to, excessive number of tickets opened by you, inappropriate language used, aggressive and/or harassing behaviour and etc. Any abuse of the helpdesk system may result in warning, helpdesk access restrictions, account suspension or possible account termination with no refund.
8. Personal Data Protection
9. User Content
Some of the features of this Site or the Services, including those Services that are hosted with Kognifi, may allow users to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, or advice via forum posts, content submitted in connection with a contest, product reviews or recommendations, or photos to be incorporated into a social media event or activity, or (b) literary, artistic, musical, or other content, including but not limited to photos and videos, together with user Submissions. All content submitted through your Account is consider user Content.
You shall be solely responsible for any and all of your user Content or user Content that is submitted through your Account, and the consequences of, and requirements for, distributing it.
By posting or publishing user Content to this Site or to or via the Services, you represent and warrant to Kognifi that (i) you have all necessary rights to distribute user Content via this Site or via the Services, either because you are the author of the user Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the user Content, and (ii) the user Content does not violate the rights of any third party.
Kognifi is not liable for the storage, distribution and use of content posted by you or your users on our services. We may restrict or remove content or terminate your account as we see fit per the acceptable use clause of this Agreement.
Kognifi may, in its sole and absolute discretion, remove and destroy any data and files stored by you on its servers, websites, accounts, platforms or services.
10. Availability Of Website and/or Services
Subject to the terms and conditions of this Agreement and our other policies and procedures, we shall use commercially reasonable efforts to attempt to provide this Site and the Services on a twenty-four (24) hours a day, seven (7) days a week basis.
You acknowledge and agree that from time to time this Site may be inaccessible or inoperable for any reason including, but not limited to, equipment malfunctions; periodic maintenance, repairs or replacements that we undertake from time to time; or causes beyond our reasonable control or that are not reasonably foreseeable including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, new rules or emergency laws or other failures.
You acknowledge and agree that we have no control over the availability of this Site or the Service on a continuous or uninterrupted basis, and that we assume no liability to you or any other party with regard thereto.
11. Notifications and Discontinued or End Of Life Services and Terms
Kognifi reserves the right to cease offering or providing any of the Services or a subset of its features or these Terms of Service, for any or no reason, and without prior notice. Those Services or features will no longer be supported by Kognifi, in any way, effective on the end of life (EOL) date. We will attempt to notify you, when possible, if such an event occurs. We will not be liable to you or any third party for any modification, suspension, or discontinuance of any of the Services or Terms we may offer or facilitate access to.
12. Payments and Renewals
Payments are due to Kognifi, when the order is placed, or Services made by you or are automatically renewed for you. All payments are per the payment terms on our system checkout or our invoice. You make payments in our portal’s payment gateway or transfer to our bank account as directed by us. All payments due must be confirmed paid by our bank to enable Services to be active.
Automated payment need to be enabled with a valid credit card, for automated renewal of Services. Failure to renew on time will result in the suspension of Services and additional processing fees to renew.
All payments made are non-refundable except if there is a genuine system error as determined by Kognifi.
Default currency will be Malaysian Ringgit (RM) for transactions in Malaysia and US Dollars (USD) for transactions outside of Malaysia.
Kognifi reserves the right to change its prices and fees at any time, and such changes shall be posted online at this Site and be effective immediately without need for further notice to you.
13. Credit Notes and Refunds
You agree that where refunds are issued to you, Kognifi’s issuance of a refund receipt is only confirmation that Kognifi has submitted your refund to the Payment Method charged at the time of the original sale. Kognifi has no control over when the refund will be applied towards your Payment Method’s available balance. As this will be dependent on your bank or credit card issuer.
Kognifi may refund the amount as a credit note to your account, to be used against future billings to you, dependent on the Services purchased.
14. Liquidated Damages
You agree that we may immediately terminate any Account which we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email or malicious or harmful activity. In addition, if actual damages cannot be reasonably calculated then you agree to pay us liquidated damages in the amount as determined by Kognifi on the costs of control, clean-up, legal and management.
15. Trademark Or Copyright Claims
Kognifi supports the protection of intellectual property. If you would like to submit (i) a trademark claim for violation of a mark on which you hold a valid, registered trademark or service mark, or (ii) a copyright claim for material on which you hold a bona fide copyright, please refer to the processes as listed by the Copyright Alliance at https://copyrightalliance.org/ and submit a support ticket following these processes.
16. Links To Third-Party Websites
This Site and the Services found at this Site may contain links to third-party websites that are not owned or controlled by Kognifi. Kognifi assumes no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites. Kognifi is not liable for any liability arising from your use of such third-parties.
17. Disclaimer Of Representations And Warranties
You specifically acknowledge and agree that your use of this site and the services found at this site shall be at your own risk and that this site and the services found at this site are provided “as is”, “as available” and “with all faults”. Kognifi, its officers, directors, employees, agents, and all third party service providers disclaim all warranties, statutory, express or implied, including, but not limited to, any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Kognifi, its officers, directors, employees, and agents make no representations or warranties about (i) the accuracy, completeness, or content of this site, (ii) the accuracy, completeness, or content of any sites linked (through hyperlinks, banner advertising or otherwise) to this site, and/or (iii) the services found at this site or any sites linked (through hyperlinks, banner advertising or otherwise) to this site, and Kognifi assumes no liability or responsibility for the same.
In addition, you specifically acknowledge and agree that no oral or written information or advice provided by Kognifi, its officers, directors, employees, or agents (including without limitation its call centre or customer service representatives), and third party service providers will (i) constitute legal or financial advice or (ii) create a warranty of any kind with respect to this site or the services found at this site, and users should not rely on any such information or advice.
The foregoing disclaimer of representations and warranties shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this agreement or your use of this site or the services found at this site.
18. Limitation Of Liability
In no event shall Kognifi, its officers, directors, employees, agents, and all third party service providers, be liable to you or any other person or entity for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever, including any that may result from (i) the accuracy, completeness, or content of this site, (ii) the accuracy, completeness, or content of any sites linked (through hyperlinks, banner advertising or otherwise) to this site, (iii) the services found at this site or any sites linked (through hyperlinks, banner advertising or otherwise) to this site, (iv) personal injury or property damage of any nature whatsoever, (v) third-party conduct of any nature whatsoever, (vi) any unauthorized access to or use of our servers and/or any and all content, personal information, financial information or other information and data stored therein, (vii) any interruption or cessation of services to or from this site or any sites linked (through hyperlinks, banner advertising or otherwise) to this site, (viii) any viruses, worms, bugs, trojan horses, or the like, which may be transmitted to or from this site or any sites linked (through hyperlinks, banner advertising or otherwise) to this site, (ix) any user content or content that is defamatory, harassing, abusive, harmful to minors or any protected class, pornographic, “x-rated”, obscene or otherwise objectionable, and/or (x) any loss or damage of any kind incurred as a result of your use of this site or the services found at this site, whether based on warranty, contract, tort, or any other legal or equitable theory, and whether or not Kognifi is advised of the possibility of such damages.
In addition, you specifically acknowledge and agree that in no event shall Kognifi’s total aggregate liability exceed RM1,000.00 Ringgit Malaysia.
The foregoing limitation of liability shall apply to the fullest extent permitted by law, and shall survive any termination or expiration of this agreement or your use of this site or the services found at this site.
Accordingly, you for yourself and all of your heirs, personal representatives, predecessors, successors and assigns, hereby fully release, remise, and forever discharge Kognifi and all affiliates of Kognifi, and all officers, agents, employees, and representatives of Kognifi, and all of their heirs, personal representatives, predecessors, successors and assigns, for, from and against any and all claims, liens, demands, causes of action, controversies, offsets, obligations, losses, damages and liabilities of every kind and character whatsoever, including, but not limited to, any action omission, misrepresentation or other basis of liability founded either in tort or contract and the duties arising thereunder, whether known or unknown, relating to or arising out of, or in any way connected with or resulting from, the Services and your acquisition and use thereof, including, but not limited to, the provision of Kognifi products and/or services by Kognifi and its agents and employees. Further, you agree to defend, indemnify and hold harmless Kognifi and any of its contractors, agents, employees, officers, directors, shareholders, affiliates and assigns from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of (i) any breach of any representation or warranty provided in this Agreement, or as provided by Kognifi’s AUP or any other agreement that has been incorporated by reference herein; (ii) the Services or your use of the Services, including without limitation infringement or dilution by you or by another using the Services from your computer; (iii) any intellectual property or other proprietary right of any person or entity; (iv) any information or data you supplied to Kognifi, including, without limitation, any misrepresentation in your application, if applicable; (v) the inclusion of metatags or other elements in any website created for you or by you via the Services; (vi) any information, material, or services available on your Kognifi hosted website; or (vii), any negligence or wilful misconduct by you, or any allegation that your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets.
This indemnification is in addition to any indemnification required of you elsewhere. Should Kognifi be notified of a pending lawsuit, or receive notice of the filing of a lawsuit, Kognifi may seek a written confirmation from you concerning your obligation to defend, indemnify and hold harmless Kognifi. Such written confirmation may include the posting of performance bonds or other guarantees. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that Kognifi shall have the right to participate in the defense of any such claim through counsel of its Own choosing. You agree to notify Kognifi of any such claim promptly in writing and to allow Kognifi to control the proceedings. You agree to cooperate fully with Kognifi during such proceedings. The terms of this section will survive any termination or cancellation of this Agreement.
The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
20. Compliance With Local Laws
Kognifi makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
21. Disputes, Binding Individual Arbitration And Waiver Of Class Actions And Class Arbitrations
Please read this section carefully. Follow the instructions below if you wish to opt out of the provisions requiring you to resolve disputes through individual arbitration.
(A) Disputes. The terms of this Section shall apply to all Disputes between you and Kognifi. For the purposes of this Section, “Dispute” shall mean any dispute, claim, or action between you and Kognifi arising under or relating to any Kognifi Services or Products, Kognifi’s websites, these Terms, or any other transaction involving you and Kognifi, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis, and shall be interpreted to be given the broadest meaning allowable under law. You and Kognifi agree that “dispute” as defined in these terms shall not include any claim or cause of action by you or Kognifi for (i) trade secret misappropriation, (ii) patent infringement, (iii) copyright infringement or misuse, and (iv) trademark infringement or dilution. Moreover, notwithstanding anything else in these Terms, you agree that a court, not the arbitrator, may decide if a claim falls within one of these four exceptions.
(B) Binding Arbitration. You and Kognifi further agree: (i) to arbitrate all Disputes between the parties pursuant to the provisions in these Terms, and (ii) this Section shall survive termination of these Terms. The decision of the arbitrator shall be final and enforceable by any court with jurisdiction over the parties.
(C) Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of Malaysia, if the action is within that court’s jurisdiction and is pending only in that court.
(D) Dispute Notice. In the event of a Dispute, you or Kognifi must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Kognifi must be addressed to: Kognifi, Suite 8.1 & 8.2, Level 8, Menara CIMB, 1 Jalan Stesen Sentral 2, KL Sentral, 50470 Kuala Lumpur Malaysia , Attn.: Legal Department (the “Kognifi Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you. If Kognifi and you do not reach an agreement to resolve the Dispute within sixty (60) days after the Dispute Notice is received, you or Kognifi may commence an arbitration proceeding pursuant to this Section. Following submission and receipt of the Dispute Notice, each of us agrees to act in good faith to seek to resolve the Dispute before commencing arbitration.
(E) Waiver of class actions and class arbitrations. You and Kognifi agree that each party may bring disputes against the other party only in an individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, including without limitation federal or state class actions, or class arbitrations. Neither you nor Kognifi will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts of proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
(F) Arbitration Procedure. If a party elects to commence arbitration, the arbitration will be administered by the Asian International Arbitration Centre (AIAC) in Kuala Lumpur and governed by the AIAC Rules (“AIAC Rules”) in conjunction with the rules set forth in these Terms, except that AIAC may not administer any multiple claimant or class arbitration, as the parties agree that the arbitration shall be limited to the resolution only of individual claims. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by these Terms. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You may choose to engage in arbitration hearings by telephone or video call.
(G) Amendments to this Section. Notwithstanding any provision in these Terms to the contrary, you and Kognifi agree that if Kognifi makes any future amendments to the dispute resolution procedure and class action waiver provisions (other than a change to Kognifi’s address) in these Terms, Kognifi will attempt to notify you per notifications mentioned within these Terms. And you will have thirty (30) days from the date of notice to affirmatively opt-out of any such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these current Terms, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
(H) Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.
(I) Exclusive Venue for Other Controversies. Kognifi and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the Courts of Kuala Lumpur. And each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
22. Unclaimed Property; Dormancy Charges
Please be advised that if a customer has an outstanding account balance (a credit positive balance) for three (3) years or more for any reason, and (i) Kognifi is unable to issue payment to such customer or (ii) Kognifi issued payment to such customer in the form of a paper check, but the check was never cashed, then Kognifi shall turn over such account balance in accordance with Malaysian laws on dormancy. You acknowledge and agree that in either case (i) or (ii) above, Kognifi may withhold a dormancy charge in an amount equal to the lesser of RM100.00 or the total outstanding account balance associated with such customer.
23. Successors And Assigns
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.
24. No Third-Party Beneficiaries nor Agency Relationship
Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties hereto. Each party shall ensure that the foregoing persons shall not represent to the contrary, either expressly, implicitly, by appearance or otherwise.
25. Malaysian, U.S. and International Export Laws
This Site and the Services found at this Site are subject to the export laws, restrictions, regulations and administrative acts of Malaysian laws and its compliance to International sanctions and laws.
None of the Services found at this Site may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws.
By using this Site and the Services found at this Site, you agree to the foregoing and represent and warrant that you are not a national or resident of, located in, or under the control of, any restricted country; and you are not on any denied parties list; and you agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations).
If you access this Site or the Services found at this Site from other countries or jurisdictions, you do so on your own initiative and you are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, you shall not access this Site, or the Services found at this Site. The obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
26. Compliance with Local Laws
Kognifi makes no representation or warranty that the content available on this site or the Services we offer are appropriate in every country or jurisdiction, and access to this site or our Services from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this site or use our Services are responsible for compliance with all local laws, rules and regulations.
27. Governing Law and Jurisdiction
Except as otherwise set forth in these Terms or any similar policy with respect to any dispute regarding the Services provided under this Agreement, your rights and obligations and all actions contemplated by this Agreement shall be governed by the laws of Malaysia. You agree that any action to enforce this agreement or any matter relating to your use of the Services must be brought exclusively in Malaysia.
You agree that any notices required to be given under this Agreement by us to you will be deemed to have been given if delivered in accordance with the unchanged for 48 hours from time of notice creation, account information you have provided in the client account details of this site.
29. Independent Covenants, Severability and Enforceability
Each provision, covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. We will amend or replace such provision with one that is valid and enforceable, and which achieves, to the extent possible, our original objectives and intent as reflected in the original provision.
30. Assignment and Resale.
Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights under this Agreement, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at our option. You agree not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes any of the Services (or portion thereof) without Kognifi’s prior express written consent.
31. Force Majeure
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its control including, but not limited to: earthquake; flood; fire; storm; natural disaster; act of God; war; terrorism; armed conflict; labour strike; lockout; boycott; supplier failures, shortages, breaches, or delays; or any law, order regulation, direction, action or request of the government, including any crown, military, federal, state and local governments having or claiming jurisdiction over Kognifi.
32. Titles And Headings
The titles and section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
33. English Language Controls
This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law (i) both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.
34. Final Agreement
This Agreement, together with all modifications, constitutes the complete and exclusive agreement between you and us, and supersedes and governs all prior proposals, agreements, or other communications. This Agreement may not be amended or modified by you except by means of a written document signed by both you and an authorized representative of us. By applying for Kognifi’s Services through the online application process or otherwise, or by using the Services under this Agreement, you acknowledge that you have read and agree to be bound by all terms and conditions of this Agreement and documents incorporated by reference.
35. Contact Information
If you have any questions about this Agreement, please contact us by regular mail or email at the following address:
Regular Mail: Kognifi Legal Department c/o Kognifi Sdn Bhd
Last revised: 9th May 2022