MACROKIOSK | Terms of Services

Terms of Services

MARKETING

INTRODUCTION

In these Terms of Services, “we”, “us”, “our” or “MACROKIOSK” will refer collectively to our entity set out in the Sales Order. The terms “you”, “your” and “Customer” will refer to you.

These Terms of Services constitutes a legal binding agreement between you and MACROKIOK and shall be read in conjunction with the Sales Order. By signing the Sales Order, you agree that you have read, understand, and accept these Terms of Services and all other policies referenced herein, each of which is incorporated herein by this reference and each of which may be updated from time to time as set forth below. If you do not agree to be bound by these Terms of Services, you should not sign the Sales Order. These Terms of Services and the Sales Order are collectively referred to as “Agreement”.

When we refer to “Services” in this Agreement, we mean social media marketing, search engine marketing, website optimisation and related services that MACROKIOSK offers, and that you order under a Sales Order. We submit information on your behalf to social media sites and search engine providers for whom you must agree to their terms and conditions. These providers may include, but are not limited to Facebook, Instagram, Google and other sites (“Providers”). The terms and conditions of these Providers all apply. We will not share your information with any business other than in the course of securing online advertising and marketing services on your behalf.
CHANGES TO AGREEMENT

We may update this Agreement from time to time. Any changes we make to this Agreement in the future will be reflected on this page and any changes we deem material will be notified to you. Where permissible under local laws, your continued use of our Services shall constitute your acknowledgement and acceptance of the changes we make to this Agreement. You agree that it is your responsibility to check back frequently to see any updates or changes to this Agreement.
ADVERTISING MATERIAL
1. You or your designees shall provide us with information or material including copy, form, size, text, graphics, names, addresses, phone numbers, URLS, logo, trade names, trademarks, service marks, endorsements, photographs or likenesses, and videos (“Advertising Material”) to be used for the Services. We have the right to place the Advertising Material on any of the third-party digital marketing networks such as those listed above and you authorise us to develop content based on the Advertising Material provided by you or your designees and collected by us.
2. You represent and warrant that (a) the Advertising Material will not infringe upon or violate any intellectual property or other rights of any third party and you have all the necessary licences and clearances to use, and to allow us to use the Advertising Material; and (b) the Advertising Material provided by you to us shall not be contrary to any applicable laws, rules, regulations.
3. We reserve at any time the right to reject any Advertising Material which in our sole and absolute opinion is not suitable or appropriate for publication for any reason whatsoever.
4. You authorise us to contact your customers for the sole purpose of gaining endorsements and reviews of your products and services for publication.
LIMITATION OF LIABILITY
1. You acknowledge that we cannot accept any responsibility or liability for the performance, policies or actions of third-party digital marketing networks, including but not limited to search engines, display networks, social networks or directories. You acknowledge that third-party digital marketing networks may drop listings, suspend accounts, impose additional requirements or terms and conditions, or undertake other actions, which may impact the Services, at their discretion. You agree that we shall not be responsible or liable for any of the foregoing.
2. Our aggregate liability to you under this Agreement, whether arising directly or indirectly from contractual, tort, negligence or any other cause of action or otherwise, shall not under any circumstances exceed the charges for the Services for each three (3) months term.
3. We shall not be liable for any incidental, consequential, indirect, punitive, special or exemplary damages related to this Agreement or the Services provided hereunder, regardless of the nature of the claim, including without limitation, lost profit, costs of delay, businses interruption even if we have been advised of the possibility of such damages.
INTELLECTUAL PROPERTY

You grant us a non-exclusive, worldwide, royalty free licence and the right to use, copy, perform, display, distribute and modify any Advertising Material provided by you in connection with the Services.
TERMINATION
1. Either party may terminate this Agreement or a particular Sales Order with immediate effect if the other party:
  1. commits a material breach of any terms of the Agreement which is incapable of remedy;
  2. commits a material breach of any terms of the Agreement which is capable of remedy but fail to remedy the same within thirty (30) days (or any other period where we mutually agree) from receipt of a written notice from other party;
  3. is or becomes unable to pay its debts within the meaning of the Malaysian Companies Act 2016 or any other legislation regarding insolvency of the jurisdiction in which it carried on business;
  4. enters into (pursuant to an order made by the court) any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
  5. is faced by an order by the court for winding up or dissolution;
  6. is faced by a receiver, receiver and manager, special administrator, trustee or similar official appointed over any of the assets or undertaking; or
  7. ceases or threatens to cease carrying on a substantial portion of its business.
2. Either party may terminate the Agreement or a particular Sales Order by providing the other party with thirty (30) days prior written notice.
3. In the event there is any unused ads credits at the time of termination, we shall refund the ads credit in cash to you.
4. Notwithstanding the foregoing, upon termination of the Agreement, all prepaid services with an outstanding balance will be executed to completion as defined by the Sales Order. All content created by us and posted for you is considered owned by you. Campaigns cannot be transitioned, but the administrative access, data and configuration can be transitioned back to you upon your request.
REPRESENTATIONS AND WARRANTIES

You hereby represent and warrant to us that you have full power authority and capacity to enter into this Agreement and be bound by all the terms and conditions herein contained and such execution and performance does not contravene any of its contractual, statutory or other obligation of any nature whatsoever.
INDEMNITY

You agree to indemnify, defend, protect and hold free and harmless MACROKIOSK and its officers, directors, employees, affiliates, suppliers, contractors, agents and assignees from and against all liabilities, damages, costs (including attorney’s fees and costs), expenses, obligations, claims, fines, penalties or losses arising from the Advertising Material supplied by you or liability claims for products or services sold by you.
NO GUARANTEES
1. You agree and acknowledge that we make no specific guarantee or warranty regarding the expected benefits, profitability or effectiveness of the Services, nor can we do so. We do not warrant the number of calls, clicks, impressions or website visits or that paid search advertising will appear in response to any particular query. We do not warrant that the performance of our services will be error-free but will immediately act to correct errors once they have been identified.
2. You acknowledge that we cannot guarantee specific delivery or positioning of any creative/advertising placements in connection with the Services.
CONFIDENTIALITY
1. Subject to Clause 10.2, each party (the “Recipient Party”) shall treat as confidential and shall not disclose or use any information received or obtained as a result of provision of the Services without the prior written consent of the other party (the “Disclosing Party”) which relate to:
  1. Any information (whether oral, in writing, machine readable or in any other form) and materials (whether electronically recorded, in writing or otherwise) that would be regarded as confidential by a reasonable businessperson relating to:
    1. the commercial, financial, business, affairs, customers, clients, suppliers, plans, intention or market opportunities of the Disclosing Party;
    2. the technical, operations, processes, product information, know-how, designs, trade secrets, software or other information directly or indirectly related to the Services including discoveries, ideas, concepts, devices, drawings, materials, specifications, techniques, models, data, documents, procedures, improvements, budgets, projections, forecasts, marketing and development plans, and financial information expressed, described or stored in whatever form made available by the Disclosing party to the Recipient Party; and
    3. confidential information of the Disclosing Party’s suppliers, customers and clients.
  2. non-public information provided to the Recipient Party and/or any of its affiliates and its and their managing directors, officers, directors, employees and advisors (collectively, the "Representatives”) by the Disclosing Party and/or its Representative and which is reasonably designated in writing to be confidential or which, under the circumstances surroundings its disclosure ought to be reasonably treated as confidential;
    Collectively, the “Confidential Information”
2. Clause 10.1 shall not prohibit disclosure or use of any Confidential Information that:
  1. the disclosure or use is required by law, any regulatory body or any recognised stock exchange;
  2. the disclosure is required by the Providers upon their request. In the event the Providers request more information of you from us, then you shall duly provide all such requested information to us so that the same will be provided to the Providers, as the case may be.
  3. the disclosure is made to professional advisers or funders of any of the parties on terms that such professional advisers or funders undertake to comply with the provisions of Clause 10.2 in respect of such information as if they were a party to this Agreement;
  4. was, at the time of its disclosure by the Disclosing Party, in the public domain or subsequently disclosed or made available to the public (except where such disclosure is a result of a breach by the Recipient Party of this Agreement);
  5. was lawfully in the possession of the Recipient Party or its Representatives prior to its disclosure by the Disclosing Party to the Recipient Party;
  6. was already known to the Recipient Party or any of its Representatives on a non-confidential basis prior to its disclosure by the Disclosing Party to the Recipient Party;
  7. is or becomes available to, or obtained by the Recipient or its Representatives from, a third party without any restrictions as to its use or disclosure by the Recipient Party (and for the avoidance of doubt, neither the Recipient Party nor its Representatives shall be required to enquire whether such third party owes a duty of confidentiality to the Disclosing Party); or
  8. is independently developed by the Recipient Party or its Representatives, without prior knowledge of, or receipt of the Disclosing Party’s information.
3. Notwithstanding any provisions to the contrary, we shall be allowed to use the Confidential Information collected through the Services for the purpose of statistical analysis of service usage, research and marketing, improving our own product offerings as well as customising our platform only.
4. Upon receipt of a written request from the Discloser Party, the Recipient Party shall:
  1. destroy or return to the Disclosing Party all documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information; and
  2. erase all Confidential Information from its computer systems or which is stored in electronic form (to the extent possible); and
  3. certify in writing to the Disclosing party that it has complied with the requirements of this Clause.
  provided that the Recipient Party and its Representatives may retain documents and materials containing, reflecting, incorporating or based on the Confidential Information to the extent (i) required by law, rule or regulations or by any judicial, governmental, supervisory or regulatory authority; and (ii) as part of back up archival records in any systems containing or previously containing the Confidential Information where such back-up or archiving occurs automatically and is retained as part of a computer disaster recovery system or other computer back-up system in the usual course of operating that computer system and where it is not reasonably practicable to delete the Confidential Information so held provided that the Recipient Party make such Confidential Information inaccessible to third parties.
5. Any collection, processing, sharing or disclosure of Confidential Information considered as or involving personal data shall be in compliance with the applicable data protection laws.
GENERAL
1. Notices
  1. Any notices or communication under or in connection with this Agreement shall be in writing in English and shall be delivered personally, or sent by prepaid post or recorded delivery, by commercial courier or by email.
  2. Any notice or communication may be deemed to have been duly received:
    1. If delivered personally, when left at the business address;
    2. If delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or
    3. If delivered by prepaid post or recorded delivery, at 9.00 am on the third business day after posting; or
    4. If delivered by email, when confirmation of its transmission has been recorded by the sender’s email delivery system (provided that the sender does not receive a delivery failure report).
  3. Any notices to us shall be delivered to our business address as specified in this Agreement or to the following addresses if sent via email:
    
    Legal & Official Notices & Enquiries
    ca@macrokiosk.com & legal@macrokiosk.com
    
    Invoicing Matters & Enquiries
    invoice@macrokiosk.com
    
    Business & Commercial Enquiries
    commercial@macrokiosk.com
    
    Technical & Support Enquiries
    techsupport@macrokiosk.com
  4. Any notices to you shall be delivered to your contact details in the Sales Order or the email address of your personnel whom we last exchanged correspondences with pertaining to the Services.
2. Severability
  
  If any term in this Agreement shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such term or part shall to that extent be deemed not to form part of this Agreement but the legality, validity or enforceability of the remainder of this Agreement shall not be affected.
3. Assignment
  1. You shall not assign or transfer this Agreement without our prior written consent. We may consent to the assignment or novation of this Agreement subject to the terms and conditions we choose to impose.
  2. We shall be entitled to assign rights and obligations wholly or partly to our subsidiaries or associate companies.
4. Third party rights
  
  This Agreement do not create or confer any rights or benefits enforceable by any person not a party to it.
5. Release, indulgence and waiver
  1. Waiver of any breach of this Agreement or of any right, power, authority, discretion or remedy arising upon a breach of or default under this Agreement, must be in writing and signed by the party granting the waiver.
  2. No failure on the part of a party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement shall 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.
  3. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies (whether provided by law or otherwise).
6. Dispute Resolution
  1. This Agreement shall be governed by Malaysian law, without regard to the choice or conflicts of law provisions of any jurisdiction.
  2. Before bringing a formal legal case, please first try contacting our legal at legal@macrokiosk.com. Most disputes can be resolved that way.
  3. If a dispute, claim, controversy related to this Agreement or the Services (collectively, “Disputes”) cannot be resolved through our legal, each party’s senior representatives will engage in good faith negotiations with other party’s senior representatives to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, the parties may refer the Disputes to the Asian International Arbitration Centre (“AIAC”), in accordance with the Rules of the AIAC as modified or amended from time to time (the “Rules”) by a sole arbitrator appointed by the mutual agreement of you and MACROKIOSK (the “Arbitrator”). If you and MACROKIOSK are unable to agree on an arbitrator, the Arbitrator shall be appointed by the President of AIAC in accordance with the Rules. The seat and venue of the arbitration shall be Kuala Lumpur, in the English language and the fees of the Arbitrator shall be borne equally by you and MACROKIOSK, provided that the Arbitrator may require that such fees be borne in such other manner as the Arbitrator determines is required in order for this arbitration clause to be enforceable under applicable law.
7. Force Majeure
  1. No failure, delay or default in performance of any obligation of a party shall constitute a breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including, without limitation, changes in laws or regulations of Malaysia, acts of God, strikes, lock-outs or other industrial disturbances, wars, insurrection, riots, epidemics, landslides, earthquakes, storms, lightning, flood, civil disturbances, explosions, loss or malfunctions of utilities, communications or computer (software and hardware) services, power failures, and any other events not within the control of either party and which by the exercise of due diligence neither party is able to overcome;
  2. If such failure, delay or default in performance exceeds thirty (30) days, either party may immediately terminate this Agreement with notice to the other party.
8. Successors and Assigns
  
  These Terms will be binding on both you and MACROKIOSK and each of our successors and assigns.
9. Costs
  
  Each party to this Agreement shall bear its costs and expenses in relation to this Agreement.
10. Relationship
  
  You and MACROKIOSK are independent contractors in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture or franchise.
11. Variation
  
  After the execution of this Agreement and from time to time, the terms of this Agreement may be varied or additional terms may be added by an instrument in writing signed by both Parties. In the event of inconsistency between the provisions of this Agreement and the terms contained in the said instrument, the terms set out in the said instrument shall prevail unless stated otherwise in the said instrument. The said instrument shall have effect and be construed as an integral part of this Agreement.
12. Entire Agreement
  
  Except as provided in this Agreement, any applicable Sales Order or other terms incorporated by reference to this Agreement, this Agreement supersede all prior understandings, promises or agreements, oral or written, made between you and MACROKIOSK and constitute the entire understanding between you and MACROKIOSK. Any purchase order or similar document provided by you shall have no effect and shall be non-binding against MACROKIOSK.
13. Prevailing language
  
  The Parties agree that (i) the Agreement in such other languages other than the English language shall only be for references purposes and have no validity; and (ii) in the event of inconsistency between the Agreement in English language and the Agreement in such other languages, the Agreement in English language shall prevail and shall be final and conclusive against the Parties.