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Platform agreement | Malaysia

Updated
  1. 1
    INTERPRETATION AND APPLICATION
  2. 1.1
    In these General Terms and Conditions (“General Terms”), all capitalised terms shall have the meaning set out in the Order Form signed between the Platform Provider and the Client, unless expressly defined otherwise.
  3. 1.2
    These General Terms are supplemental to and form part of each and every Order Form(including its annexes) and any variations or amendments thereto, in respect of the services to be provided by Platform Provider to the Client.
  4. 1.3
    Nothing in this Agreement shall be construed to constitute either Party as the agent of the other or to constitute the Parties as joint ventures or co-owners, or as participants in a joint or common understanding. Neither Platform Provider nor the Gig Workers shall be or be deemed employees of Client.
  1. 2
    SECURITY DEPOSIT
  2. 2.1
    Client shall provide a deposit to Platform Provider as security for the performance of Client's obligations under this Agreement ("Security Deposit"). The applicable Security Deposit is set out in the Order Form, and shall be provided by the Client in accordance with an invoice issued by Platform Provider. For avoidance of doubt, Platform Provider shall not be obligated to provide the Platform and/or any of its functionalities until such time the Security Deposit has been paid by Client.
  3. 2.2
    Platform Provider shall not be required to:
  4. 2.2.1
    hold the Security Deposit on trust for Client;
    2.2.2
    segregate the Security Deposit separately from Platform Provider's own funds;
    2.2.3
    obtain any interest on the Security Deposit; and/or
    2.2.4
    account for any interest that may accrue on the Security Deposit.
    2.3
    Subject to the rights of Platform Provider under this Agreement, including the security rights under Clause 2.1, Platform Provider shall return the Security Deposit to Client upon the termination or expiration of this Agreement.
  1. 3
    NON-SOLICITATION AND LIQUIDATED DAMAGES
  2. 3.1
    At all times during the Term, and for a period of six (6) months after a Gig Worker ceases to provide their freelance services to the Client, (the “Restricted Period”) the Client shall not, directly or indirectly employ, solicit, recruit, or hire (or take any action that may result in any of the above) any Gig Workers for the Client’s own employ or service, unless:
  3. 3.1.1
    with Platform Provider's consent; and
    3.1.2
    upon payment of compensation to the Platform Provider of a sum amounting to theFees which the Platform Provider would otherwise have received from Client (or any other customers) if such Gig Worker had continued to use the Platform during suchRestricted Period, as a fair and reasonable estimate of the loss that would be suffered by Platform Provider from the Gig Worker’s cessation of use of the Platform.
  1. 4
    WARRANTIES AND REPRESENTATIONS
  2. 4.1
    Each Party hereby warrants and represents to the other Party that:
  3. 4.1.1
    it has the power and authority to enter into, execute and deliver this Agreement and to carry the terms hereof into effect; and
    4.1.2
    it shall perform its obligations herein in compliance with the terms in this Agreement and all applicable laws and legal requirements.
  4. 4.2
    Nothing in this Agreement shall be so construed as to constitute a warranty or representation by Platform Provider as to:
  5. 4.2.1
    the ability of the Gig Workers to perform the services that they undertake to perform for the Client;
    4.2.2
    the accuracy of the information provided by the Gig Workers to Platform Provider which is transmitted to Client; and
    4.2.3
    the number of Gig Workers that will in fact report to Client for the shifts.
  1. 5
    LIMITATION OF LIABILITY
  2. 5.1
    Platform Provider shall not be responsible for the acts and/or omissions of any Gig Worker(including a failure to report to a shift), and any claims, judgments, losses and/or liabilities which are due to or result from any services provided by any Gig Worker shall be borne solely by the Gig Worker. Any complaints between any Gig Worker and Client shall be resolved between these parties directly.
  3. 5.2
    Without prejudice to the generality of any other term herein, Platform Provider makes no representation or warranty of any kind (whether expressed or implied) in respect of any services provided by any Gig Worker and shall not be responsible for the quality, safety or legality of the services provided by the Gig Worker, or the qualifications or identities of anyGig Worker.
  4. 5.3
    Client shall bear all risks arising out of Client's use of the Platform and any services provided by any Gig Worker, and shall not have any recourse to Platform Provider in respect of the same.
  5. 5.4
    Without prejudice to Clause 5.5 below, neither Party shall be liable to the other Party under any circumstances whatsoever for any consequential, indirect or incidental loss of any nature(including but not limited to any loss of profit, revenue, business opportunity, goodwill or reputation), or any special, punitive or exemplary damages, regardless of whether such loss was reasonably foreseeable, or whether such Party has any actual knowledge or notice of the possibility of such loss.
    5.5
    Nothing in this Agreement shall exclude or in any way limit either Party’s liability for (i) breach of Clauses 6 or 7; (ii) breach of statutory duty; (iii) death or personal injury caused by its negligence; or (iv) any other liability to the extent such liability may not be excluded or limited as a matter of law.
  1. 6
    CONFIDENTIAL INFORMATION
  2. 6.1
    “Confidential Information” for the purpose of this Agreement shall mean all information or data of a confidential or proprietary nature disclosed, furnished or communicated by or on behalf of a Party or its affiliates to the other Party or its affiliates or to a third party acting on its behalf; whether in oral, visual, written, electronic or other tangible or intangible form, relating to the business or proposed business, finances, transactions, manpower and affairs of the first-mentioned Party.
  3. 6.2
    Each Party shall not at any time during or after the Term, without the prior written approval of the other Party, use for its own benefit or for the benefit of any other person, firm, company or organisation, directly or indirectly divulge or disclose to any person any ConfidentialInformation of the other Party which has come, or may come, to the first-mentioned Party’s3knowledge during the Term or in connection with this Agreement. Each Party agrees that theConfidential Information of the other Party may only be used by the first-mentioned Party for the performance of its obligations under this Agreement and for no other purposes.
  4. 6.3
    The obligations set forth in Clause 6.2 shall not apply to:
  5. 6.3.1
    any Confidential Information which is already or becomes available to, or within the knowledge of, the public generally; or
    6.3.2
    any use or disclosure authorised in writing by the disclosing Party or required by law, regulations or the rules of a recognised stock exchange.
  6. 6.4
    Each Party acknowledges that unauthorised disclosure or use of the other Party’s ConfidentialInformation will cause substantial and irreparable injury to the other Party, that money damages will not adequately compensate for such injury and that the other Party therefore, is entitled to seek specific performance, injunctive relief or other equitable relief for breach of obligations of confidentiality as set forth in this Agreement.
    6.5
    Each Party shall, upon termination or expiration of this Agreement, forthwith destroy or return to the other Party, at the first-mentioned Party’s option and cost, all Confidential Information of the other Party, including any copies or reproductions thereof, in the first-mentioned Party’s possession or control. In addition, Platform Provider shall, and procure that each of the GigWorkers shall, surrender any keys and any other property of Client that have been received by Platform Provider and/or the Gig Workers during the course of providing the services.
  1. 7
    DATA PROTECTION
  2. 7.1
    Platform Provider shall, in its collection, processing, disclosure or other use of any information and data which can be related directly or indirectly to an identifiable individual (“Personal Data”), for any purpose arising out of or in connection with this Agreement, adhere to the requirements of the Personal Data Protection Act 2012 (No. 26 of 2012) (“PDPA”).
  3. 7.2
    Platform Provider represents, undertakes and warrants that where it discloses Personal Data of the Gig Workers or any other person (collectively, the “Subject Individual”) to Client, it has obtained the prior consent of such Subject Individual for Client and its affiliates to collect, use, disclose, transfer and process his/her Personal Data for all purposes relevant in the context of this Agreement.
  4. 7.3
    Client represents, undertakes and warrants that it shall comply with the PDPA where applicable, including in relation to the processing of any Personal Data of a Subject Individual.
  1. 8
    TERMINATION
  2. 8.1
    Either Party may terminate this Agreement by giving to the other Party no less than 30 days’ notice in writing.
  3. 8.2
    Either Party may, by written notice to the other Party and at any time, terminate this Agreement with immediate effect with no further obligations or liabilities whatsoever to the other Party (including to make any further payment, other than in respect of amounts accrued prior to the effective date of such termination) if:
  4. 8.2.1
    the other Party commits any material breach or repeated breach or non-observance of any of the terms or conditions of this Agreement;
    8.2.2
    the other Party breaches any or all of the warranties and representations applicable to it set out in Clause 4 above;
    8.2.3
    the other Party enters into liquidation whether compulsorily or voluntarily, or enters into an arrangement with its creditors or makes any general assignment for the benefit of its creditors or has a receiver or similar officer appointed in respect of any material part of its assets or property or ceases or threatens to cease to carry on the whole or any substantial part of its business, or any other circumstances such that, in the reasonable opinion of the first-mentioned Party, the other Party is no longer able to perform its material obligations under this Agreement; or
    8.2.4
    the other Party, in the reasonable opinion of the first-mentioned Party, acts in such manner detrimental to the interest, goodwill or reputation of the first-mentionedParty.
    8.3
    Termination or expiry of this Agreement shall be without prejudice to any other rights or remedies the Parties may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of the Parties nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
    8.4
    Clauses 6 and 7 shall survive any termination or expiry of this Agreement
  1. 9
    NOTICES
  2. 9.1
    Notices under this Agreement shall be in writing and sent to the recipient's registered office or address (or email address of the relevant contact person of each Party), each as set out in the Order Form. Notices may be given, and shall be deemed received:
  3. 9.1.1
    by registered post: on receipt of delivery by the postal authorities;
    9.1.2
    by hand: on delivery; or
    9.1.3
    by email: at the time of transmission.
    9.2
    Delivery by way of email shall not apply to service of any proceedings or documents in any legal action.
  1. 10
    FORCE MAJEURE
  2. 10.1
    If a Party hereto is prevented or delayed by Force Majeure in the performance of any of its obligations under this Agreement and gives written notice thereof to the other Party hereto specifying the matters constituting Force Majeure, together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then such Party shall be excused (as applicable) from the performance or punctual performance of its obligations under this Agreement as from the date of such notice and for so long as such cause of prevention or delay shall continue. During the duration of the Force Majeure event, the Party so affected shall use its best efforts to avoid or remove such Force Majeure and shall take reasonable steps to resume its performance under thisAgreement with the least possible delay.
  3. 10.2
    For the purpose of this Agreement, “Force Majeure” shall be deemed to be any cause affecting the performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the Party to perform and shall include but without prejudice to the generality of the following: acts of God, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster, civil commotion, riot, invasion, war threat or preparation for war, strikes, lock-outs or other industrial action, embargoes, changes in applicable laws or in the interpretation or application thereof by any governmental, quasi-governmental or other body charged with the administration thereof and political interference with the normal operations of the Party hereto perform.
  4. 10.3
    Notwithstanding anything in this Agreement, upon the occurrence of a Force Majeure event affecting either Party and such Force Majeure event continues for a period exceeding 30 calendar days without a prospect of a resolution of such event, the other Party shall have the option, in its sole discretion, to terminate this Agreement. Such termination shall take effect immediately upon the written notice to that effect from the other Party to the Party affected by the Force Majeure event.
  1. 11
    ENTIRE AGREEMENT
  2. 11.1
    The Parties agree that this Agreement constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
  3. 11.2
    Each Party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.
  1. 12
    MISCELLANEOUS
  2. 12.1
    Platform Provider reserves the right, in its sole discretion, to update the General Terms andDocumentation from time to time. The latest version of the General Terms and Documentation may be found on the Platform, and will be effective immediately upon posting. The Client's continued use of the Services after amendments to the General Terms and/or Documentation become effective shall constitute a binding acceptance of such amendments. No other amendment or variation of this Agreement shall be valid or effective unless it is in writing and is duly signed by Platform Provider.
  3. 12.2
    Client may not, without the prior written consent of Platform Provider, assign, transfer, subcontract, license or otherwise dispose of any right, obligation or benefit conferred or granted under this Agreement to any third party.
  4. 12.3
    Platform Provider may assign, transfer, novate all or any part of the benefit of this Agreement and any of its rights, remedies, powers, duties and obligations under this Agreement to any of its affiliated entities (including, for the avoidance of doubt, FastGig Pte. Ltd.) without the consent of Client. Client shall do all necessary steps required to effect such assignment, transfer, or novation accordingly.
    12.4
    The illegality, invalidity or unenforceability of any provision of this Agreement under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction nor the legality, validity or enforceability of any other provision.
    12.5
    The contra proferentem rule shall not apply in the construction of this Agreement and the language in all parts of this Agreement shall be construed as a whole and neither strictly for nor against any Party to this Agreement.
    12.6
    No failure on the part of any Party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
    12.7
    This Agreement shall be governed by and construed in accordance with the laws of Singapore. The Parties agree to submit to the non-exclusive jurisdiction of the courts inSingapore.
    12.8
    This Agreement may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
    12.9
    A person who is not party to this Agreement shall not have any right under the Contracts (Rights of Third Parties) Act 2001 to enforce any provision of this Agreement.
    12.10
    Each Party shall bear its respective costs and expenses (including legal costs) in respect of the preparation, negotiation and execution of this Agreement.
    12.11
    This Agreement shall be binding upon the respective successors-in-title and permitted assigns of the Parties.
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