This Merchant Agreement is a legal and binding agreement between Bakomaju Sdn Bhd (the‘‘Company’’) and the Merchant. By applying for becoming MecHero’s Merchant through the submission of Merchant Application Form and other necessary documents (the ‘‘Forms’’) or by using MecHero to promote and or sell products to MecHero’s users as defined below, the Merchant acknowledges that the Merchant has read and agree to be bound by all of the terms and conditions of this Agreement and all documents incorporated by reference.

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DEFINITION

1. In this Merchant Services Agreement, including the above recitals and the Form attached hereto (the “Agreement”), the following expressions shall have the respective meanings set out as follows (except to the extent that the context requires otherwise):

 

‘‘Agreement’’ - means this Merchant Agreement, including the recitals, the Application Form, and the appendices attached hereto.

 

“Application Form” - MecHero’s application form which is used by the Merchant to register as Merchant in MecHero. The application form shall include relevant information, including but not limited to, the Merchant’s particulars, the Product/Services provided, and the settlement information between the Company and Merchant for the Transaction.

 

“Marks” - The names, marks, designs, logos, signs, acronyms and other insignia (whether registered or unregistered) used or to be used by MecHero in connection with the Services including all variations thereof and amendments thereto from time to time.

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‘‘MecHero’’ - The online platform fully developed and owned by Bakomaju Sdn Bhd (Registration No. 726574-X) to promote, introduce, recommend mechanical/construction products and relevant solutions to its users.

 

‘‘Platform’’ - means the relevant MecHero platform, portal or website that enables Users to request or access Solutions;

 

“Merchant” - The party which has registered through submitting of MecHero’s application form and/or use MecHero as platform to promote their business & products.

 

‘‘User’’ - means any person or company representative who uses the Platform to search for and obtain the Solutions.

 

‘‘Fee’’ - mean registration fee or other fees charged by the Company for the service provided on MecHero.

 

“Regulatory Authority” - Any ministry or department of the Government of Malaysia and includes any statutory authority or body in Malaysia established with powers to regulate banking, credit or financial services and/or electronic transactions or communications.

 

“Services” - The range of services provided by MecHero and/or the company pursuant to this Agreement as may be authorised by Company from time to time.

 

“Transaction” - Transactions effected and Services obtained by the MecHero’s Users.

 

2. Clause headings are inserted for convenience of reference only and shall not affect the interpretation of this Agreement.

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3. This Agreement shall apply to any and all Services that the Merchant obtains from the Company & MecHero. The Merchant agrees to abide by the additional terms and conditions set out in the Application Form, the appendices attached to the Agreement and/or other guidelines announced by the company in the written notice to the Merchant from time to time.

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PROPRIETARY RIGHTS

4. MecHero hereby grants to the Merchant, for the term of this Agreement, a personal non-assignable non-exclusive licence to use the Marks in connection only with its provision of the Services in accordance with such manner of use as may be stipulated or permitted by Company from time to time and the Merchant agrees that it shall derive no title or interest in the Marks or any part thereof and shall not attain any goodwill in respect thereof.

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5. The Merchant undertakes to put up and display such signs and to distribute such materials at its premises relating to the Services, whether or not such materials contain the Marks, as may be reasonably required by Company from time to time but not to otherwise do so without the prior written consent of Company.

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6. The Merchant hereby authorises and consents to MecHero making reference to, using and reproducing the Merchant’s name, trade marks, logos, signs, acronyms and other insignia in any material or medium for the advertisement, publicity and promotion of the Services. Provided that MecHero shall not thereby or otherwise derive any title, interest, claim, right or goodwill in the same.

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UNDERTAKINGS OF MERCHANT

7. The Merchant agrees and undertakes throughout the term of this Agreement that the Merchant shall:

7.1 provide updated, true information about available products and pricing selling via MecHero to its Users;

7.2 check the condition of the goods and products before selling to MecHero’s Users, make sure that the goods and products are well-packed, new, quality, function-able and without any defects, unless otherwise specified earlier in writing to MecHero and its Users.

7.3 provide the Services without the imposition of any surcharge, special charge or taking any security from the Merchant’s Users in relation to a Transaction;

7.4 not make any warranty or representation whatsoever in relation to the Services which may bind MecHero or render the Company liable in any way whatsoever;

7.5 maintain, throughout the term of this Agreement, adequate and competent personnel to perform the Services.

 

UNDERTAKINGS OF COMPANY

8. Company agrees and undertakes that it shall:

8.1 use its best endeavours to provide to the Merchant the Services for which the Merchant registered and pays the Fees when applicable;

8.2 The Company makes no representations or warranties of any kind with respect to the platform operated by the Company or any software and hardware provided, or any part thereof, express or implied, and shall not be liable to the Merchant for any loss or damage howsoever caused and regardless of the form of loss or damage which may be suffered or incurred by the Merchant or any third party in connection with this Agreement including (without prejudice to the generality of the foregoing) any loss of profit in consequence of a breakdown in providing the Services or part thereof.

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PAYMENTS

9. All Transactions shall be made in Malaysia Ringgits.

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10. The Merchant shall be liable to make payments due to the Company arising from this Agreement in accordance with the provisions herein:

10.1 The Company may revise its applicable fees and other charges from time to time and will notify the Merchant in writing (which period of notification shall be determined by the Company in its sole discretion) of the date (the “Effective Date”) when the new fees or charges become payable. The Merchant shall confirm in writing to the Company its acceptance or non-acceptance of the new fees or charges on or before the Effective Date. If Company does not receive the Merchant’s written non-acceptance of the new fees or charges within the aforesaid period on or before the Effective Date, the Merchant shall be deemed to have accepted the new fees or charges and shall be bound to pay the new fees or charges from the Effective Date. If the Merchant notifies the Company in writing on or before the Effective Date that it does not accept the new fees or charges, this Agreement shall be deemed terminated on the Effective Date but without prejudice to the antecedent rights or liabilities of the parties hereto.

10.2 All fees and charges paid by the Merchant under this Agreement shall not be refundable in the event of termination of this Agreement howsoever caused.

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PHOHIBITED PRODUCTS AND SERVICES

11. The Merchant shall ensure that the products sold to the Users shall not contain articles which are prohibited or restricted under any and all applicable laws and regulations.

 

INDEMNITY

12. The Merchant hereby agrees and undertakes to fully indemnify and keep the Company harmless from and against all actions, claims, costs (including legal costs on a full indemnity basis), losses, charges, expenses and damages which the Company may suffer or incur as a result of:

12.1 the occurrence of any event under Clause 27;

12.2 any fraud, dishonesty or misconduct (criminal or otherwise) relating to the Transactions perpetrated by the Merchant, its servant, agent, employee or contractor or the fraud, dishonesty or misconduct (criminal or otherwise) perpetrated by a third party as a result of the negligence or default of the Merchant, its servant, agent, employee or contractor; and

12.3 any loss caused by or to or damage to any of Company’s platform arising out of the act or omission whether negligent or otherwise of the Merchant, its servant, agent, employee or contractor or out of any failure of the Merchant, its servant, agent, employee or contractor to use the platform in accordance with the procedures prescribed by the Company.

12.4 The Merchant shall not hold the Company liable or responsible for any action, claim, cost, expense, damage and loss, including consequential loss or damage or loss of profit, which the Merchant may suffer or incur as a result of a breakdown in the provision of the Services or when the Services are not available for any reason whatsoever.

12.5 The company shall indemnify the Merchant against direct losses not exceeding the sum of Riggit Malayisa One Hundred (RM100) suffered by the Merchant as a result of any fraud, negligence, dishonesty or misconduct (criminal or otherwise) relating to any Transaction by any servant, agent, employee or contractor of the Company.

 

DISCLOSURE

13. The Merchant hereby agrees and consents to the disclosure and release by the Company of any information in the possession of MecHero relating to the Merchant, the particulars of the Transactions or any designated account relating to the Transactions for the purpose of investigating any claim or dispute arising out of this Agreement or in connection with the Transactions under the provision of the Services which consent shall survive both the suspension of rights hereunder and the termination of this Agreement.

 

ASIGNMENT

14. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and legal Representatives and shall not be construed so as to confer any benefit upon any other person except as expressly provided herein.

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15. The Merchant shall have no right to assign or transfer the Merchant’s rights and obligations in this Agreement and shall remain fully liable for all of the Merchant’s respective duties, liabilities and obligations hereunder.

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16. The Company shall be entitled to assign its rights and benefits and transfer its obligations under this Agreement at any time by giving the Merchant written notice thereof in which event the said assignment and transfer shall ipso facto take effect.

 

LIABILITY TO CONTINUE

17. Unless this Agreement is terminated in accordance with Clause 10.1, Clause 22 or Clause 25, the liability of the Merchant under this Agreement shall continue notwithstanding any change in its constitution and in the case of a firm, any change in its constitution whether by withdrawal, retirement, expulsion, death or admission of any partner, amalgamation, dissolution or otherwise; in the case of a body of corporate, the winding-up whether voluntary or compulsory or any amalgamation, reconstruction or otherwise; and in the case of a statutory body, the amalgamation, merger, reconstruction, privatisation, dissolution or otherwise and this Agreement shall continue in full force and be binding on the entity formed or the party appointed to carry on the Merchant's business.

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RELATIONSHIP OF THE PARTIES

18. The parties hereto shall not by virtue of this Agreement be deemed to be a partner or agent of each other nor shall anything herein contained be construed as creating a partnership, joint association or trust it being agreed that each party will be responsible only for its obligations under this Agreement and neither party shall be authorised to represent or bind the other to third parties.

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SEVERABILITY

19. If any provision herein is deemed by any tribunal or court of competent jurisdiction to be illegal, invalid or unenforceable under any applicable law or otherwise, it shall, to the extent required by such law and subject to the agreement of the Company, be severed from this Agreement and rendered ineffective so far as is possible without affecting the legality, validity and enforceability of the remaining provisions of this Agreement.

 

INDULGENCE

20. The liability of the Merchant hereunder shall not be impaired or discharged by reason of any time or grace or other indulgence being granted by or with the consent of the Company or any forbearance by Company to insist upon its strict rights hereunder. No right under this Agreement shall be deemed to have been waived except in writing signed by the parties hereto and waiver of any particular right in a particular instance shall not constitute or be deemed a waiver of any other right.

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FORCE MAJEURE

21. No failure or omission by any party to carry out its obligations or observe any of the stipulations or conditions of this Agreement shall give rise to any claims against the party in question or be deemed a breach of this Agreement if such failure or omission arises from a cause of force majeure, such as acts of God, war or warlike hostilities, civil commotion, riots, blockades, embargoes, sabotage, strikes, lockouts, shortage of material or labour, delay in deliveries from sub-contractors or machine failure caused by force majeure, or any other event outside the control of the party in question.

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SUSPENSION OF RIGHTS

22. Without prejudice to any of the Company’s rights at law and under this Agreement, in the event of a breach by the Merchant of any of the terms and conditions of this Agreement, Company may at its sole discretion give immediate notice in writing to the Merchant to remedy the breach within one (1) month of the said notice and may during the notice period, suspend all rights of the Merchant under this Agreement, save for those rights necessary to enable the Merchant to remedy the breach. If the Merchant shall fail to remedy the breach within the aforesaid notice period, Company shall have the right but not the obligation to extend the notice period (with or without suspension) or forthwith terminate this Agreement in accordance with Clause 27.

 

CHANGE IN CONSTITUTION

23. Where the Merchant is a sole-proprietor or partnership, the Merchant shall notify the Company in writing of any admission, retirement or death of any proprietor or partner.

24. Where the Merchant is a society or corporation, the Merchant shall notify the Company in writing promptly upon any change in the Merchant’s organisation (including the composition of the shareholders of the Merchant), or corporate or business structure or in any of its particulars furnished to the Company.

 

TERMINATION OF AGREEMENT

25. This Agreement shall become effective when the Merchant successfully registered in MecHero and shall remain in force and effect until terminated in accordance with the terms of this Agreement.

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26. Either party to this Agreement may elect to terminate this Agreement by giving one (1) month’s prior notice in writing to the other party of its intention to do so.

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27. Notwithstanding Clause 25 and Clause 26, the Company shall have the right (but not the obligation) at anytime to give immediate notice in writing to the Merchant to terminate this Agreement and take immediate effect to the termination forthwith upon the happening of any one or more of the following events of default, whether or not such event is of a continuing nature:

27.1 if in the sole opinion of the Company, Merchant has breached any of the terms and conditions of this Agreement;

27.2 if the Merchant enters into liquidation, receivership, judicial management or otherwise compounds with its creditors or takes or suffers any similar action or occurrence in any jurisdiction;

27.3 if the Merchant becomes insolvent or stops payment or ceases or threatens to cease to carry on its business or any part of its business;

27.4 if any resolution is passed or steps taken by the Merchant or any other person to apply for judicial composition proceedings with its creditors or an order is made by any competent court for such proceedings or a receiver, judicial manager, administrator or other similar official is appointed in relation to the Merchant or any part of the assets or undertakings of the Merchant or encumbrancer taking possession of any part of the assets or undertakings of the Merchant or a distress or execution or other process is being levied or enforced upon or sued out against any part of the assets or undertakings of the Merchant;

27.5 if the Merchant is deceased or its partnership is dissolved;

27.6 if the Merchant or any of its shareholders, partners, proprietors, officers, employees, agents or contractors is or is suspected by the Company to be involved in any fraudulent or unlawful activity whether or not relating to the Merchant's business;

27.7 if the Merchant's business involves any trade or activity deemed undesirable by the Company, or Regulatory Authority; or

27.8 if there had been multiple complaints and disputes relating to the Merchant's goods or services by the MecHero’s Users.

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28. In the event of termination of this Agreement for whatever reason:

28.1 the Merchant agrees and undertakes to return to Company immediately all materials, books, records or otherwise pertaining to the provision of the Services, and shall not thereafter use the Marks or any part or derivatives thereof;

28.2 the Merchant agrees and undertakes to permit the Company, and Company shall have the right of access to the Merchant’s premises to disconnect, retrieve and remove any equipment relating to the provision of the Services which is not owned by the Merchant and any material bearing the Marks or derivatives thereof and at the request of Company, the Merchant will at its own expense assist Company to exercise its rights hereunder and shall fully cooperate to comply with the requirement of Company in this respect; and

28.3 any antecedent right and liability of either party shall not be thereby prejudiced or impaired.

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29. In the event that the Company terminates this Agreement in accordance with the terms hereof, the Merchant acknowledges and agrees that no reason whatsoever needs to be communicated to the Merchant for such termination and the Company shall not be liable in any way for any loss or damage incurred or suffered by any party due to such termination.

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CONSTRUCTION AND VARIATION

30. The Application Form and appendices shall be deemed to form part of this Agreement and shall be constructed to be a basis on which the parties have entered into this Agreement.

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31. In the event that the provisions of this Agreement are inconsistent with or contradictory to the provisions in the Application Form and/or appendices, the terms contained in the Application Form shall prevail.

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32. This Agreement constitutes the entire agreement between the parties hereto and all prior arrangements, representations and undertakings are hereby superseded.

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33. No variation or amendment to any provision of this Agreement shall be made unless in writing and duly signed by authorised representatives of the parties hereto.

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CONFIDENTIALITY

34. "Confidential Information" means any confidential, trade secret or proprietary information (which may be business, financial or technical information) disclosed by one party to the other under this Agreement that is marked confidential or if disclosed orally designated as confidential at the time of disclosure or that should be reasonably understood to be confidential.

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35. Each party agrees that:

35.1 Each party shall not disclose to any third party or use any Confidential Information disclosed to the party by the other except as expressly permitted in this Agreement and for purposes of performing this Agreement, and

35.2 Shall take reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own proprietary information or Confidential Information of similar importance. Each party further agrees to use the other party's Confidential Information only for the purpose of its performance under this Agreement.

35.3 In addition, the receiving party shall not reverse engineer, disassemble or decompile any prototypes, software or other intangible objects which embody Confidential Information and which are provided to the receiving party hereunder.

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36. The obligations set forth in Clause 35 above do not apply to information that

36.1 is in or enters the public domain without breach of this Agreement;

36.2 the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation;

36.3 the receiving party knew prior to receiving such information from the disclosing party or develops independently without access or reference to the Confidential Information;

36.4 is disclosed with the written approval of the disclosing party.

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37. Notwithstanding the obligations set forth in Clause 35 above, each party may disclose Confidential Information of the other party:

37.1 to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law but only after alerting the other party of such disclosure requirement and, prior to any such disclosure, allowing (where practicable to do so) the other party a reasonable period of time within which to seek a protective order against the proposed disclosure, or

37.2 on a "need-to-know" basis under an obligation of confidentiality substantially similar in all material respects to those confidentiality obligations to its legal counsel, accountants, contractors, consultants, banks and other financing sources.

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RIGHTS OF THIRD PARTIES

38. Any person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act or any amendment thereto to enforce any term of this Agreement.

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NOTICES

39. Unless otherwise provided herein or agreed to in writing and signed by the parties hereto, all notices or other communications sent via registered email between Merchant and the company shall be sufficiently deemed to have been served in the case of a notice delivered by the time of email sent out.

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GOVERNING LAW AND COMPLIANCE

40. This Agreement shall be governed by and construed in all aspects in accordance with the laws of Malaysia and the parties hereto irrevocably submit to the exclusive jurisdiction of the courts of Malaysia.

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41. The parties hereto each undertakes to comply with all laws and regulations as may be applicable to the performance of its obligations under this Agreement.