Master Subscription Agreement
THIS AGREEMENT made and entered (“this Agreement”) into on this ______________ (____) day of ________, Two Thousand and Nineteen (2019)
BY AND BETWEEN
MIHCM ASIA SDN BHD (1095749 M) a company duly incorporated in Malaysia and having its registered office at 2A-1-1, Tingkat 1, Blok 2A, Plaza Sentral, Jalan Stesen Sentral 5, Kuala Lumpur Sentral, 50470 Kuala Lumpur. (hereinafter known and referred to as “MIHCM ASIA” which term or expression as herein used shall where the context so requires or admits mean and include the said MIHCM ASIA SDN BHD its successors and assigns) of the FIRST PART;
—————————————————————————————————————————————————————————————————————————————————- (hereinafter known and referred to as “the Customer” which term or expression as herein used shall where the context so requires or admits mean and include the said Customer, its successors and assigns) of the SECOND PART;
WHEREAS MIHCM ASIA is a company engaged in the business of designing and developing software and has extensive expertise and experience in the area of implementing and maintaining Human Capital Management solutions.
AND WHEREAS MIHCM ASIA has unveiled a Human Capital Management product on the Cloud, under the name and style of “Microimage Human Capital Management Cloud” (hereinafter “MiHCM”) and shall make MiHCM available to its customers subject to the various terms and conditions hereinafter contained.
AND WHEREAS MIHCM ASIA agreed with ……………………………………. has accepted to use MiHCM subject to the terms and conditions hereinafter contained.
AND WHEREAS it is the intention of the Parties for the better manifestation of the agreement between them to reduce to writing their specific rights duties obligations privileges and responsibilities terms and conditions as stated and agreed to hereunder in this Agreement any attached Annexures and Schedules all of which shall constitute part and parcel of this Agreement and shall be so read and construed.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
1. DEFINITIONS & INTERPRETATIONS
Agreement – means this Agreement together with any annexes and schedules which where the context so admits may be sometimes referred to as the Master Subscription Agreement (MSA);
Customer – means the entity or individual that has consented to this Agreement by execution of this Agreement.
Customer Data – means any content, materials, data and information of the Customer.
Documentation – means MIHCM ASIA’s technical and functional documentation pertaining to MiHCM which is made available to the Customer.
MiHCM – means Microimage Human Capital Management software offered as a Cloud service (“MiHCM”)
MIHCM ASIA – means MIHCM ASIA SDN BHD the entity providing the MiHCM HR.
Named User / Users – means the Customer’s and its affiliates, employees, agents, contractors, consultants, suppliers or any other party or parties authorized by the Customer.
Party/Parties – MIHCM ASIA and the Customer shall be individually referred to as the Party and collectively as Parties.
Service/s – The service/s provided by MIHCM ASIA to its Customer/s in respect of MiHCM HR.
Project Plans – Project plans will include the time plan of each module roll out.
In this Agreement, unless the context otherwise requires:
2.1 For and in consideration of MIHCM ASIA agreeing to implement and the Customer accepting MiHCM HR and in further consideration of the mutual covenants obligations responsibilities and other terms and conditions as specified herein the Parties shall enter into this Agreement.
3.1 This Agreement shall be effective from __________, Two Thousand and Nineteen (2019) (“Effective Date”) and shall remain in force for a period of One (01) Year from the Effective Date thereafter shall be automatically renewed for successive periods of One (01) year each, unless terminated by either party, pursuant to this Clause 3.
4.1.1 Shall set forth/provide a description of the MiHCM HR to the Customer in the business proposal shared by MIHCM ASIA.;
4.1.2 Shall use commercially reasonable security systems, techniques and technology (such as password protection) when making MiHCM available to the Customer.
4.1.3 Shall make available MiHCM HR to the Customer in accordance with and during the term stated in this Agreement.
4.1.4 Shall maintain and handle all Customer Data in compliance with the applicable data privacy and protection laws rules and regulations.
4.1.5 Shall permit the Named User/Users authorized by the Customer to access and use MiHCM HR for the sole use of the Customer’s internal business purposes as permitted by and subject to the terms and conditions of this Agreement.
4.1.6 Shall be entitled to monitor Customer’s number of Named Users who have been authorized by the Customer to access MiHCM.
4.1.7 Shall have the right to change or modify (Feature enhancements, UI improvements implemented to MiHCM) MiHCM HR at any time subject to uninterrupted service continuity.
4.1.8 However, if there are any major changes to the processes, requested by the Customer or otherwise, MIHCM ASIA shall have the right to carry out same.
4.1.9 Shall due to any of the following events is unable to meet its obligations in respect of the Service provided to the Customer, take immediate steps to inform/notify the Customer in writing of such inability and shall take corrective preventive actions within half a day to one day’s time period. However continuous availability of application and database is assured.
– any interruption to the Service on the MiHCM provided to the Customer occurs; or
– any material change requiring implementation that will affect the Service on the MiHCM; or
– any other disability to perform the Service on the MiHCM And MIHCM ASIA will ensure that the root cause for any setbacks in the system would be found so that such instances would not recur in the future.
4.1.10 MiHCM is provisioned through Microsoft Azure Cloud Infrastructure. MIHCM Asia has entered into a global subscription partnership with Microsoft Azure and currently operates the application out of a number of global data centers. Microimage guarantees that MiHCM will be available 99.3% of the time with all the planned and unplanned maintenance downtimes including those set out in clause 4.1.9.
4.1.11 MIHCM ASIA shall adhere to the Service Level Agreement included in Annexure B in this agreement.
4.2 RIGHTS, RESPONSIBILTIES AND OBLIGATIONS OF THE CUSTOMER
4.2.1 Shall subject to clause 14 herein grant MIHCM ASIA the non-exclusive right to use Customer Data for the sole purpose and only to the extent necessary for MIHCM ASIA to provide MiHCM as set forth in this agreement.
4.2.2 Shall be responsible for entering its Customer Data to access MiHCM and further be responsible for the content of the Customer Data supplied by it. Ownership of Customer Data will be with the Customer.
4.2.3 Shall maintain and handle all Customer Data in compliance with the applicable data privacy and protection laws rules and regulations.
4.2.4 Shall maintain commercially reasonable security standards for it and its Names User/Users when accessing MiHCM.
4.2.5 Shall pay MIHCM ASIA the fees for MiHCM in the manner and method provided hereunder.
4.2.6 Shall promptly report to MIHCM ASIA any actual use in excess of the number of Named User/Users.
4.2.7 Shall be entitled to free MiHCM application updates/upgrades for the subscribed modules during the subscription period. Subscription to any additional modules will be based on the list price.
4.2.8 Shall enable access of the Service for use only by authorized parties solely for the internal business purposes of the Customer and its affiliates in accordance with the documentation and not for the benefit of any third party/parties.
4.2.9 Shall be solely responsible for the accuracy, quality and legality of all Customer Data and prevent unauthorized access to or use of the Service and in the event of such unauthorized access or use shall notify MIHCM ASIA promptly.
4.2.10 Shall designate a maximum number of named contacts to request and receive support Services form MIHCM ASIA.
4.2.11 Shall request from MIHCM ASIA to train the named contacts of the Customer on MiHCM.
5.1 The Customer shall pay MIHCM ASIA the agreed fees for providing MiHCM, the amount of which is set forth in the agreement, within Ten (10) working days from the date of receipt of the invoice.
5.2 MIHCM ASIA shall bill the customer immediately upon receipt of the purchase order for the setting up & configuration and thereafter once the setting up of the first module is completed MIHCM ASIA shall bill the Customer for Monthly subscription of MiHCM.
5.3 The customer shall commence paying the total subscription fee immediately after the first module is setup and configured even-though there may be modules in the setting up/ configuration stage. MIHCM ASIA shall bill the customer the total subscription fee at the beginning of the agreed payment term such fees paid by the customer are non-refundable and non-cancellable.
5.4 Subject to the provisions under clause 4, MI shall verify the active employees of the Customer on MiHCM at the beginning of each billing cycle and will inform the Customer for invoicing.
5.5 The subscription fee as set out in this agreement (MSA) will be fixed for the term mentioned in the MSA. At the end of the term indicated in the MSA, the term will be automatically renewed for a further period of one (01) year and the subscription fee will remain unchanged unless otherwise communicated in advance by MI/ Channel Partner of such change to the subscription fee to the customer and agreed.
5.6 The fees as set out in the Agreement will be fixed for the term mentioned in the Agreement. At the end of the term of the Agreement, the term will be automatically renewed for a further period of one (01) year unless otherwise stated in the Agreement.
5.8 In the event of non-payment of any fees due to MIHCM ASIA from the Customer and such outstanding fees are outstanding for more than thirty (30) days from the date of the bill, then MiHCM provided by MIHCM ASIA to the Customer shall be suspended without notice to the Customer. Further, if MiHCM is suspended for more than Ninety (90) days (3 months) during which time the Customer has not settled the outstanding fees, the Customer account will be completely suspended and/or terminated and/or made dormant.
5.9 Once the Project Plan is shared by MIHCM ASIA/Channel Partner with the Customer, it is expected that the project will complete as per the end date in the Project Plan. However, if for unavoidable circumstances the Project is dragged or on-hold beyond the end date in the Project Plan by the Customer, after the Azure instance is created, Master data is uploaded & there’s a data utilization MIHCM ASIA has the right to deactivate the instance created for the Customer account, unless otherwise Customer is willing to pay the Monthly subscription fee with immediate effect. The setting up Man days utilized thus far will be accumulated and deducted from the total number of days specified initially in the Project plan. Once deactivated, Customer will have to officially notify Channel Partner/MIHCM ASIA in writing to activate the tenant/ account again when the project is ready to commence.
5.10 If the customer requires API Calls and Custom Email Notifications from the system there will be a separate charges as set out in Annexure A Table 03 and Table 04.
6.1 Time and the strict and punctual payment by the Customer to MIHCM ASIA in accordance with Clause 5 hereof shall be of the essence. Time is also of essence with respect to performance of obligations by the Parties that specify a time for such performance.
7.1 Either Party may terminate this Agreement by giving thirty (30) days written notice to the other Party of other party’s material breach of any provisions of this Agreement. Unless the breaching Party has cured such breach within …………. (……) days of receiving notice, the other party may terminate this Agreement. In the event of such termination, where MIHCM ASIA has breached the agreement and not cured the Customer shall be entitled to a pro-rata refund of the pre-paid fees for the use of MiHCM. If the customer has breached the agreement and not cured MIHCM ASIA will not be refunding the customer for any pre-paid fees.
7.2 In case of breach by the Customer, customer shall pay MIHCM ASIA any unpaid fees covering the remainder of the term as stipulated on the invoice. Further the Customer shall pay any unpaid fees to MIHCM ASIA for the period prior to the effective date of termination as termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to MIHCM ASIA prior to the effective date of termination.
7.3 In the event of termination of this Agreement by MIHCM ASIA in the manner aforesaid, MIHCM ASIA will suspend the Service provided to the Customer on MiHCM immediately and no billing shall take place thereafter. Further, Ninety (90) days (3 months) after the date of suspension of the Service, the Customer shall be terminated.
7.4 Notwithstanding MIHCM ASIA’s right to terminate this Agreement in terms of clause 7.1 above, MIHCM ASIA may, in its absolute discretion, deactivate the Customer’s Named User/Users and password/s and/or temporarily suspend access to MiHCM thereof or portion thereof, if and to the extent MIHCM ASIA can substantiate that the continued use of MiHCM may result in harm to MiHCM or other customers of MIHCM ASIA or the rights of third parties, upon prior written notice to the Customer as the circumstances permit.
7.5 Upon the effective date of termination, the Customer’s access to MiHCM product shall be terminated.
7.6 After the termination of this Agreement if the Customer make a written request within thirty (30) days of such termination, MIHCM ASIA shall make the Customer Data available to the Customer of the MiHCM Service on a limited basis solely for the purpose of retrieving Customer Data for a period of up to thirty (30) days from the date of the written request. MIHCM ASIA will not have any obligation to maintain or provide any Customer data and may thereafter (unless legally prohibited) delete all Customer Data. The Customer could extract any data using the standard web services of MIHCM ASIA. Any assistance required by the Customer from MIHCM ASIA can be obtained based on the current billing rates of MIHCM ASIA together with a duly executed statement of work and professional agreement.
8.1 Each of the Parties warrant that it has received all of the proper and necessary authority to enter into this Agreement and that the execution of this Agreement does not conflict with or place such Party in non-compliance or breach with any agreement law decree court judgement bank loan credit facility or obligation.
8.2 MIHCM ASIA warrants that MiHCM offered to the Customer confirm to the specifications stated in this Agreement placed by the Customer.
8.3 MIHCM ASIA warrants that:
– It will perform its services in a professional manner consistent with generally accepted business and industry practices;
– MiHCM offered by MIHCM ASIA to the Customer will confirm in all material respects with the description and specifications set forth in the forth in the business proposal/ Agreement.
9.1 Any notice or other communication that is made hereunder or in connection with this Agreement will be made in writing in English and shall be served either by (i) hand delivery whether acknowledged; or not; or (ii) by registered post or courier; or (iii) by facsimile and/or (iv) by electronic mail to the respective addresses set out herein above, or at such other address as may be subsequently intimated by one Party to the other in writing. If any notice is sent by facsimile, or electronic mail, the said notice shall also be sent by registered post or courier.
9.2 All notices shall be deemed to have been duly served (i) if sent by facsimile or electronic mail, 12 hours after confirmation of same; (ii) if delivered by hand or sent by courier on the date of delivery set forth in the records of the person who accomplished the delivery; or (iii) if sent by registered/speed post, three Business Days after posting.
10.1 This Agreement shall be governed and interpreted by and construed in accordance with the Laws of Malaysia.
10.2 In the event of any dispute between the Parties during the subsistence of this Agreement or thereafter, in connection with the validity, interpretation, implementation or alleged breach of any provision of this Agreement or termination thereof (“Dispute”), the Parties hereto shall first endeavor to settle such dispute amicably.
11.1 No Party shall transfer or assign its obligations under this Agreement in whole or in part without prior written consent of the other Parties.
12.1 No amendments, changes, alterations or modifications to any provision of this Agreement shall be effective unless such changes, alterations or modifications are agreed and reduced to writing and are signed by the duly authorized officers of the Parties hereto.
13.1 The Parties hereto shall keep strictly confidential not disclose to any third party and use only for the purposes of this Agreement and any agreement flowing there from all information technical or otherwise relating to the affairs and business of the Parties its successors and assigns whether such information is disclosed by one Party to the other or otherwise obtained as a result of their association with each other.
13.2 MIHCM ASIA and the Customer shall agree that any confidential information of the other party will not be released to any person or entity which is not a party to this Agreement. Confidential Information shall mean and include any information not limited to technical, customer, personnel, supplier or business information in written graphical, oral or other tangible or intangible form.
13.3 Neither MIHCM ASIA nor the Customer shall disclose or use the Confidential Information other than what is expressly authorised to do so under the terms of this Agreement or as may be required by Law.
14.1 Notwithstanding anything herein to the contrary, except for the parties’ obligations stated under obligations in this agreement, damages resulting from unauthorized use or disclosure of confidential information, and MIHCM ASIA’s right to collect unpaid fees due hereunder, under no circumstances and regardless of the nature of any claim shall either party (or their respective affiliates) be liable to each other or any other person or entity under this agreement (i) for an amount of damages in excess of the fees paid for the applicable service in the twelve (12) month period preceding the date of the incident giving rise to liability; and (ii) for any special, incidental, consequential, or indirect damages, loss of good will or business profits, work stoppage or for exemplary or punitive damages.
14.2 The provisions of this Agreement allocate the risks between MIHCM ASIA and Customer. The Service fees reflect this allocation of risk and limitations of liability herein. The aforementioned liability limitations shall include any claims against employees of, subcontractors of, or any other persons authorized by, either party.
15.1 Neither MIHCM ASIA nor the channel partner will take any risk and liability for any loss, damage or injury resulting from the sale and use of the Products, either alone or in combination with other products.
15.2 Entire Agreement – This Agreement constitute the entire agreement between the Parties in relation to the matters contemplated herein and supersedes all previous proposals, agreements and other written and oral communications in relation hereto, which shall become null and void upon execution of this Agreement.
15.3 Force Majeure – Subject to the terms and conditions of this Agreement, if at any time during the term of this Agreement, the performance in whole or in part by either Party of any obligation under this Agreement shall be prevented or delayed by reason of any natural disasters or acts of god (hereinafter referred to as the “Event of Force Majeure”) for a period exceeding two (02) months the Parties shall meet and review in good faith the desirability and conditions of terminating this Agreement.
15.4 No Third Party Beneficiaries – Except as specifically provided in this Agreement, no provision of this Agreement (including the Schedules, any attachments and supplemental agreements hereto) shall be for the benefit of or be enforceable by any third party, including creditors of any Party hereto.
15.5 Relationship of the Parties – Nothing in this Agreement is intended or shall be construed to create or establish an agency, partnership, or joint venture relationship between the Parties hereto.
15.6 Non-Exclusivity – It is expressly agreed between the Parties that the execution of this Agreement shall not in any way hinder, preclude or restrict MIHCM ASIA from entering into similar or comparable agreements with any other party.
15.7 Severability – If any provision of this Agreement shall be adjudged or deemed to be illegal, invalid, void and or unenforceable, the remaining provisions of this Agreement shall not in any way be affected or impaired but shall remain binding on the Parties hereto to such extent as permitted by applicable law. The Parties further agree that they shall make every effort to change and/or amend such illegal, invalid, void and or unenforceable provision by way of a duly executed addendum to this Agreement, to make same legal, valid and binding.
15.8 Waiver – no failure or delay by the Parties in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy on future occasions.
15.9 Counterparts – This Agreement shall be executed in duplicate, each of which shall be deemed an original, but together they shall constitute one and the same instrument.
IN WITNESS WHEREOF the duly authorized officers of the Parties hereto have placed their respective hands and or caused their respective seals to be placed hereunto and to one other of the same tenor on the respective dates and places as specified hereunder.
MIHCM ASIA SDN BHD