The use of WemoFleet (defined below) and supply of the Services (defined below) is subject to and governed by these general terms and conditions (“GTC”) and those found in:
the CRSF (defined below);
the EULA (defined below); and
the Quotation (if any) (defined below); and
any document(s) which the Parties may from time to time execute in connection herewith (“Supplementary Document(s)”), (collectively, the “Agreement”).
You are deemed to have accepted all the terms and conditions in this Agreement:
upon our acceptance of CRSF; or
upon our receipt of your written acceptance of the Quotation; or
upon your use of the Services (or any part thereof); or
upon the Customer’s use of the Services (or any part thereof); whichever being the earlier.
In this GTC and unless expressly stated otherwise:
“Business Day” means the days on which we are open for business in Kuala Lumpur (except Saturdays, Sundays and gazetted public holidays in Malaysia);
“CRSF” means our online/offline Customer Registration and Subscription Form, which you can view at our Website and which you have submitted for the Services through our Website;
“Customer” means your customer(s) or end user(s);
“Devices” means the apparatuses, products, devices, components or parts bundled or provided in connection with the Services (if any);
“EULA” means the End-User License Agreement governing the use of WemoFleet, which can be found in our Website or Website FAQ;
“WemoFleet” means the online fleet management platform owned, managed by Omnimatics to facilitate the provision of the Services;
“Party” means either you or us, as the case may be;
“Parties” mean both the you and us;
“Subscription Fees” means the charges and fees payable by Customer for the Services;
“Services” or “Service” means the service(s) described in Clause 4.1;
“You”, “Yours” or any cognate term means the Customer of the Services as described in the CRSF;
“We”, “Our”, “Omnimatics” “Provider” or any cognate term means Omnimatics Sdn Bhd (Company No. 201501021115 [1146451-U]);
“Website” means www.omnimatics.io;
“Quotation” means the written quotation issued by us to you in connection with the Services.
“Vehicle(s)” means the vehicle(s) described in the CRSF on which the Devices are to be installed or fitted.
The Services this GTC refers to is the platform “WemoFleet” via wemofleet.com
The Services are as described in the Website and Quotation and its supply may be bundled with the Devices, depending on the terms of your Service subscription.
The Services may be rendered or supplied in part or in whole by our authorised suppliers and/or us.
The Services will commence once we receive your written confirmation of the preferred time and date for the Services to be activated (“Service Activation”).
You shall ensure that no part of the Services (including the Devices) are used or applied for any unlawful purposes.
You agree to subscribe for a data connection plan provided by or through us for the provision of the Services only.
You agree not to do or allow to be done anything that may cause the Services to be interrupted, disrupted, suspended or otherwise discontinued.
VARIATION OF THE SERVICES
Except in the case of the Devices or any part thereof (which may be changed, discontinued or replaced by us from time to time), no changes or variation to the Services shall occur until and unless the Parties in writing mutually agree upon such change or variation.
SUSPENSION OF THE SERVICES
Suspension due to breach (other than non-payment of Fees) - Any breach on your part of this Agreement shall entitle us to forthwith suspend the supply of Services and/or the Devices without any compensation or liability to you and without prejudice to our other rights and remedies.
Suspension due to non-payment of Subscription Fees - We may forthwith suspend the supply of Services and/or the Devices without any compensation or liability to you without prejudice to our other rights and remedies whereupon you may be liable to pay us a reconnection fee stipulated in Appendix 1 of this GTC and other costs if our Subscription Fees or any part thereof remains outstanding for 30 consecutive calendar days.
You acknowledge and agree that the quality, uptime, availability and consistency of the Services cannot be guaranteed due to external factors that could interfere with the delivery thereof such as internet connectivity.
You further agree that the Services are provided on a “non-exclusive”, “as is” and “best effort” basis, without any guarantee or warranty of any kind in respect of quality, completeness, accuracy, functionality, operability, accessibility, correctness, reliability, timeliness, merchantability or fitness for purpose.
The Services will be delivered based on the following target service levels:
7.4 Target Response is subject to following schedule:
On-site support: 10:00 A.M. to 5:00 P.M, Monday to Friday;
Phone Support: 9:00 A.M. to 6:00 P.M, Monday to Friday;
Email Support: 9:00 A.M. to 6:00 P.M, Monday to Friday.
All Devices supplied may be new or reconditioned.
Unless otherwise provided in this Agreement, the ownership of all Devices shall at all times remain with us and these Devices must be returned by you to us in good working condition and order (fair, wear and tear exempted).
You and those under your charge (including the Customers) are not permitted to tamper, adjust, install, uninstall or modify the Devices unless our prior written authorisation has been obtained.
You shall ensure that all Devices installed or fitted in the Vehicles are operated in accordance with our instructions.
The responsibility for the Devices (including its safety) shall rest and remain with you once the Devices:
are delivered to you, your representative(s) or nominated installers; or
where the Devices are installed or fitted into the Vehicles.
8.6 You shall be liable to us for all our cost (including the cost of repair, reinstallation, reconfiguration, and/or replacement) if any Devices are found to be tampered, incorrectly installed or removed, modified, damaged or stolen and the cause thereof is not attributable to us or our authorised suppliers, all costs incurred by us to repair, replace and/or reinstall the same shall be borne by you.
8.7 The price of repair, replacement and/or reinstallation of the Devices are as set out in Appendix 1 of this GTC.
8.8 Notwithstanding anything stated or implied to the contrary:
all cost in connection with the replacement of consumables such as battery, cables, parts and other accessories shall be borne by the Customer;
Omni reserves the right:
not to service or otherwise attend to Vehicles located outside of Malaysia;
to replace defective Devices with either new or used ones.
(c) we are not responsible for the reliability, functionality or performance of any third party products or services such as those from hardware and accessories providers, telecommunication providers, map vendors, search engines and etc (these are inclusive but not exclusive)
(d) Device history will be retained and remain accessible by you for up to 3 months only. Any extension shall be at our discretion based on your request and on a case-to-case basis where additional charges will apply.
SERVICE RELATED RISKS AND CUSTOMER CONDUCT
You are deemed to have examined the details and impact of Services before subscribing for the same including all risks associated with the use thereof and you expressly agree to assume all such risks.
You acknowledge and agree that use of the Service and/or Devices may cause the warranty of the Vehicle(s) to be void and you irrevocably agree not to hold us or our authorised suppliers liable for any losses that you may incur as a result hereof.
You shall at all times be responsible for the conduct of the Customers.
ORDER OF PREVALENCE
Any conflict or inconsistency between this CRSF, GTC, the Quotation, the EULA, and the Supplementary Document(s), shall be construed in the following order of precedence: (i) the Supplementary Document(s) (if any); (ii) the Quotation (if any); (iii) the CRSF; (iv) GTC; (v) EULA.
The term of this Agreement is as set out in the CRSF (“Term”) and may upon its expiry, be extended or renewed on such terms and conditions as the Parties shall mutually agree provided such extension or renewal is reduced into writing and duly signed off by the Parties.
Subject to Clause 12.5 below, we shall be entitled to claim from you for the balance unexpired Term and all other incidental costs if you terminate this Agreement pre-maturely without cause.
All charges payable by you for the Services and the lease of the Devices (“Subscription Fees”) and the terms of payment are set out in the Agreement.
The following are not included in the Subscription Fees and shall be paid by you separately: (i) taxes, duties, tariffs, and levies at the prevailing rate (including Sales and Service Tax); (ii) out of pocket expenses; and (iii) incidental charges.
In addition to the above, we shall be entitled to impose on you separate charges for any repair, replacement, reconnection, reinstallation or reconfiguration of any Devices if the cause thereof is not attributable to our authorised suppliers or us.
Notwithstanding Clause 21.1 below, we reserve the right to revise the Subscription Fees from time to time if there are changes to our operating cost and a prior written notice will precede any such revision.
You may terminate and exit this Agreement if the revision hereof results in the material increase of the Subscription Fees whereupon the provisions of Clause 11.2 shall not apply on you.
In the event this Agreement is terminated:
by us without cause; or
by you with cause;
all Subscription Fees that have been paid in advance will be prorated and returned to you free of interest within fourteen (14) Business Days of the date of termination.
We may impose and collect from you security deposit(s) in such form and manner as we shall see fit for your due observance of this Agreement (“Security Deposit”) where the amount thereof shall be as set out in the Quotation and/or the CSRF.
The Security Deposit shall be maintained by you in the amount as stipulated in the Quotation and/or the CSRF throughout the Term or any extension or renewal thereof.
We may forfeit, set off or deduct the Security Deposit or any part thereof against any losses we incur pursuant to any breach of this Agreement on your part without prejudice to any our other rights and remedies.
The set off, deduction or forfeiture of the Security Deposit or any part thereof will not result in the termination of this Agreement unless otherwise determined by us.
The Security Deposit shall be returned to you without interest upon the expiry of this Agreement less such amount as may be due to us hereunder (if any).
TERMINATION FOR CAUSE
This Agreement shall automatically terminate upon the following:
where you are adjudged to be a bankrupt or pass a resolution for your winding up or a court of appropriate jurisdiction makes an order for you to be wound up or dissolved; or
where you fail to have in place all the necessary licences, permits or approvals for the performance of your obligations under this Agreement;
where an administrator or receiver or encumbrancer is appointed over the whole or substantial part of your undertaking, assets or business;
where you are found to have committed an offence under the Malaysian Anti-Corruption Commission Act 2009 or any other applicable anti-corruption laws;
where you are found to be in breach Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 or any other applicable anti-money laundering laws;
where you merge or are acquired by another entity; or
where you directly or indirectly enter into any form of arrangement, compromise or composition in satisfaction of your debts with your creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of appropriate jurisdiction for protection from your creditors.
Notwithstanding the above, we may terminate this Agreement with immediate effect under the following circumstances:
where you breach any of the terms and conditions in this Agreement and after being notified of such breach by us, you fail to remedy the breach to our satisfaction within the timeframe set out in our notification;
where you assign, novate or transfer all or substantially all of your assets other than as security for indebtedness;
where your business is suspended for more than sixty (60) days for reasons other than force majeure; or
where there is a material change in your business direction; or
where there is a material change in your shareholding structure.
TERMINATION WITHOUT CAUSE
Notwithstanding anything stated or implied to the contrary in this Agreement, we reserve the right to terminate this Agreement without cause and without any form of liability to you at any time by way of notice in writing where in such circumstances; the provisions of Clause 11.2 shall not apply.
CONSEQUENCES OF TERMINATION AND EXPIRY
16.1 Upon the expiry or termination of this Agreement:
all amounts due to us from you shall become payable immediately and in full; and
all rights and interest of the Parties that have accrued prior to the termination or expiry of this Agreement shall not be affected.
LIMITATION OF LIABILITY
17.1 Our total liability to you under this Agreement (if any) for any loss or damage suffered by you in connection with any breach on our part of the terms and conditions of this Agreement shall be limited and not exceed the amount of Subscription Fees payable for the Services.
17.2 To the maximum permitted under applicable law, we shall not under any circumstances be liable to you for any consequential, special, punitive or indirect losses or damages including loss of revenue or profits, reputation data or goodwill.
WARRANTIES AND REPRESENTATIONS
18.1 You expressly warrant and represent to us that:
you have all the necessary power, capacity and authority to enter into this Agreement;
you are lawfully authorised to allow or permit the Devices to be installed or fitted into the vehicles described in the CSRF;
your participation in this Agreement will not cause us to be in violation of any applicable law or regulation; and
there are is no action, suit or proceeding at law or in equity or before any court, tribunal, governmental body, agency or official (whether pending or threatened) that is likely to affect the your ability to perform your obligations hereunder;
CONFIDENTIALITY & PERSONAL DATA
19.1 Both of us shall keep all non-public information disclosed in connection with the Services (“Confidential Information”) in whatever form confidential and will not disclose it to any third party unless such disclosure is required under applicable law, regulation or legal process.
19.2 Where personal data is disclosed by you to us, you agree for us to use, process, retain and store such personal data in accordance with our Personal Data Policy which can be found at our Website. You further confirm to us that you have obtained the express consent of the data subject for his or her personal data to be processed in the manner as set out in this clause.
19.3 For the purposes of this Clause 19, the expression “personal data” and “data subject” shall have the meaning as ascribed thereto in the Personal Data Protection Act 2010.
The Agreement sets out the entire agreement and understanding between the Parties in connection with the Services and shall supersede any prior agreements, understandings, arrangements, statements or representations relating to the same.
AMENDMENT AND MODIFICATION
21.1 Save and except for the provisions of Clause 12.4 and Appendix 1, any amendment or modification to this Agreement must be in writing and signed by an authorised representative of each Party.
22.1 Neither of us shall be deemed to be in breach of the terms and conditions of this Agreement if the cause thereof is due to any event beyond either of our reasonable control (“Force Majeure Event”). For the purposes of this clause, no event shall be regarded as a Force Majeure Event unless it is so agreed by the both of us and a Force Majeure Event shall include any act of god, lockdown, infectious diseases, strike and rioting.
22.2 Unless mutually agreed by the both of us in writing, this Agreement shall be deemed terminated if the Force Majeure Event continues for a period of 6 consecutive months.
23.1 Failure by any of the Parties to exercise or enforce any available right, interest or remedy shall not amount to a waiver of such right, interest or remedy.
23.2 No waiver shall be deemed valid unless it is made in writing by the Party whose right such right, interest or remedy is to be waived.
24.1 You shall not novate, transfer or assign the benefit (or transfer the burden) of this Agreement to a third party unless our prior written consent has been obtained.
25.1 Any notices to the Parties delivered under this Agreement shall be in writing and delivered by hand, electronic mail or email, courier or pre-paid AR registered post to the address appearing in the Agreement or such other address as notified by the one Party to the other.
25.2 Notices hereunder shall be deemed delivered under the following circumstances:
If delivered by courier or pre-paid AR registered post, on the 3rd Business Day for notices sent within Malaysia and on the 10th Business Day for notices sent outside of Malaysia;
If delivered by email, on the day following its transmission.
26.1 We shall at all times be deemed as an independent contractor and none of us is or shall be considered to be an agent or representative of the other.
26.2 Nothing in this Agreement shall be deemed to constitute a partnership between the two of us. the Parties.
27.1 You agree to fully indemnify us and keep us indemnified always from and against all claims, costs, damages, losses, liabilities, fines, demands and expenses (including legal costs) which we may incur as a result of your breach of this Agreement.
LAW AND JURISDICTION
28.1 This GTC and the Agreement shall be governed by the laws of Malaysia and any dispute arising hereunder shall be resolved by any court of competent jurisdiction in Malaysia.
ANTI-BRIBERY AND ANTI-CORRUPTION
29.1 You are aware and acknowledge that we take a zero tolerance approach to the violation of our Anti-Bribery and Anti-Corruption Policy (which can be found at www.apm.com.my) and any applicable anti-corruption and anti-bribery laws and regulations.
29.2 You further agree agrees that any violation of the above by you or those under your charge constitutes a material breach of this Agreement and will entitle us to forthwith terminate this Agreement and/or all matters in connection thereto; and (ii) report the matter to the relevant authorities; without prejudice to any of our other rights and remedies.
29.3 You warrant and represent to us that neither you nor those under your charge have directly or indirectly made, offered, given or authorised the release of any gratification (including payment, undertaking, gift or any other advantage) to us or our officers in the course of negotiation, execution and performance of this Agreement where the purpose thereof is to influence, incite or induce us or our officers to perform or refrain from performing acts contrary to its legal obligations or obtain improper advantage in relation to the activities under this Agreement.
30.1 Ownership of all data captured or contained in WemoFleet or developed as a result of the Services shall vest with Omnimatics absolutely at all times
Requests for overseas travel for installation / troubleshooting / meetings will be discussed with your account manager.
We may revise the rate of our charges in Appendix 1 from time to time. Please visit our Website for the latest revision. If you have any queries, please contact us at firstname.lastname@example.org
Last Update: 13 July 2021