All rights, title and interest in the Software (including without limitation all Intellectual Property Rights) vest in and remain with the Licensor at all times and the Licensee acquires no rights whatsoever therein save and except as granted under the Licence. Rights and title of the Hardware may be transferred to Licensee upon meeting certain terms and conditions set by the Licensor.

 

These Terms and Conditions were last modified on 1 October 2022.

 

Please read these Terms and Conditions carefully. You are required to read and understand them before signing up for the services offered by CALMS Technologies Sdn Bhd or proceeding further on the Website. If you do not accept these Terms and Conditions please do not use this Website or the services provided as described on this Website

 

By signing up for the services offered on the Website, you accept all the Terms and Conditions set below.

 

1. Definitions

‘Agreement’	means the Terms and Conditions stated herewith;
‘Data’	means data, information or material provided or submitted by the Licensee or any User to the Licensor in the course of utilizing the Software and Hardware;
‘Intellectual Property Rights’	means all present and future rights conferred by statute, common law or equity in or in relation to any copy right, trade mark, service mark, industrial design, patent, layout design of integrated circuit, business method, domain name, trade secret, and any other intellectual property right in any field or industry;
‘Licence’	means a non-exclusive, non-transferable, non-sublicensable, non-exclusive licence governing the use of the Software and Hardware granted to the Licensee pursuant to the terms and conditions set herewith;
‘Licensee’	means the party(ies) whose name(s), particulars and address(es) are as stated in the registration for Account activation on the EDUPurS Website;
‘Licensor’	means CALMS Technologies Sdn. Bhd. (Company No. 574042-U) having its business address at Block DC3, Server Farm, UPM-MTDC Technology Centre, Universiti Putra Malaysia, 43400 Serdang, Selangor, Malaysia;
‘Software’	means the computer applications created by the Licensor
‘Hardware’	means the hardware equipment and devices supplied by the Licensor to be used together with the Software provided to Licensee;
‘Account’	means the Account created specific for User to access and manage the Services offered by the Licensor.
‘Term’	means a one year duration from the date of activation of Account;
‘Third Party Technology Supplier’	means the rightful owner and/or licensor of the Third Party Software and Hardware;
‘Third Party Software and Hardware’	means software and hardware owned by third parties and used by the Licensor in the Software and Hardware with proper authorization or licence from the Third Party Technology Supplier;
‘Updates’	means new software versions and releases that may include enhancements, new features (extensions to existing functionality) and bugs fixes;
‘User’	means one of the Licensee’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by the Licensee in connection with the Licensee’s business affairs who are authorized to use the Software and have supplied username and password by the Licensee;

2. Grant of Licence

2.1 The Licensor warrants that it has the authority to grant the Licence.

2.2 The Licensor grants to the Licensee a Licence to use the Software and Hardware for a Term.

2.3 The Licence shall only be valid for a Term.

2.4 The Licence granted hereunder does not in any way whatsoever authorize the Licensee to distribute, rent, loan, sell, lease, licence, sub-licence or otherwise deal in the Software and/or its related documentation.

 

3. Renewal

3.1 This Agreement shall be automatically renewed at the end of the current Term for a successive Term unless either party gives written notice of its intention not to renew one (1) month before expiration of the current Term.

3.2 The Licensor shall notify the Licensee of any changes in the terms of the Agreement at least two (2) months prior to the notice period for renewal or termination.

 

4. Upgrade, Support and Maintenance

Upgrade

4.1 As and when deemed appropriate by the Licensor in its absolute discretion, the Licensor may provide upgrades to the Software in the form of Updates.

4.2 Updates (if any) to the current version of the Software will be provided by the Licensor via delivery mode (electronic download or physical media) agreed upon by both parties in writing.

4.3 Upgrades provided shall not entitle the Licensee to any release, option, module, or future product, which the Licensor, in its sole discretion, licenses separately or offers for an additional license fee.

4.4 The Licensor is under no obligation to develop any future modules or functionality.

Support and Maintenance

4.5 The Licensor will be providing support in the form of email, telephone and online technical support. On site support will be provided at the discretion of the Licensor. The Licensor’s support policies from time to time will change and apply.

a) Coverage period will be during normal business hours of 8.00am to 5.00pm, Monday to Friday, excluding Malaysian public holidays;

b) Response time will be within four (4) hours and resolution within one (1) to three (3) working days depending on severity of problem;

c) Any support services required outside the coverage period will be chargeable on hourly rate at the rate to be made available on request.

4.6 Technical support is provided only for the then-current release version and the immediately preceding version of the Software, running unaltered, and on an appropriate hardware and operating system configuration.

4.7 Technical support is limited to reasonable assistance in response to the Licensee’s inquiries regarding:-

a) Installation and configuration

Assisting the Licensee to install and configure the Software and Hardware;

b) Licensing

Assisting the Licensee to determine whether the Software can be installed on a particular type of computer hardware platform and any pre-requisite solutions required to run the Software on Licensee’s hardware;

c) Usage

Assisting the Licensee to better understand the intended and proper use of features of the Software and Hardware;

d) Defects

Assisting in resolving suspected Software and Hardware defects and errors directly or with the aid of other appointed contractors, resolve the suspected errors. The Licensor may provide workarounds to the Licensee, including service packs to the Software to resolve suspected Software errors. The service pacts may be issued between Updates in cases where the Licensor deems the defect(s) is severe enough to prevent the Licensee from using the Software.

4.8 Support services does not include:-

a) Training to the Licensee;

b) Parts replacement for faulty components on Hardware due to wear and tear, mishandling and act of God;

c) Consulting and providing advices and judgments for the Licensee’s application(s) or the Licensee-specific work;

d) Diagnosing problems with the Licensee’s processes other than identifying potential defects in the Software and Hardware;

e) Configuration and custom interface or integration with Third Party Software and Hardware;

f) Running an application or process without the required and recommended combination of hardware, operating system and pre-requisite software;

g) System administration in the likes of installing operating system patches, configuring networks; and

h) Any other support not stated in Clause 3.7 and/or support that the Licensor deems to not be included in support and maintenance.

4.9 The Licensee shall only be entitled to support upon settlement of ALL accrued fees of the current Term.

4.10 The Licensee shall provide full access to the Software and Hardware to enable effective support and maintenance. This includes remote access capability to the Software and Hardware such Teamviewer, Open VPN, Log Me In etc.

 

5. Fees

5.1 In consideration of the Licence, the Licensee shall pay all fees due to the Licensor within fourteen (14) days after the receipt of invoice in the mode and manner agreed by the parties.

5.2 All fees shall be in the currency denominated by the Licensor.

5.3 All fees are exclusive of all taxes, levies, duties, stamp duty and surcharges payable in respect of the Licence and in respect of this Agreement, including without limitation any government service tax.

5.4 If payment is not made within fourteen (14) days of the due date, interest will be payable by the Licensee at the rate of ten per cent (10%) per annum on the overdue amount from the due date until the date payment is made and, if any payment is owing after thirty (30) days from the due date, the Licensor shall be entitled to suspend or terminate its remaining obligation under this Agreement and to revoke the Licence granted hereunder. Pursuant to this, all Data will be dealt with in the manner as specified in Clause 8 of this Agreement.

5.5 If the Licensee disputes the whole or any part of the amount claimed in an invoice submitted by the Licensor pursuant to this Agreement, the Licensee will pay the undisputed portion on the due date. The dispute regarding the remainder may be resolved by reference to the dispute resolution procedures prescribed by this Agreement. If it is subsequently resolved that a further amount is payable, the Licensee will pay that amount together with interest at the rate of ten per cent (10%) per annum.

5.6 In addition to paying all fees payable in connection with this Agreement (which is exclusive of all taxes, levies, duties, stamp duty and/or surcharges ), the Licensee will pay to the Licensor an amount equal to any taxes, levies, duties, stamp duty and/or surcharges payable by the Licensor in respect of any monies payable under this Agreement.

 

Licence Fees

5.7 Licence fees paid by the Licensee for the Service represents the fee for a Term, payable before the start of the Term.

 

6. No Refund

All fees paid are non-refundable.

 

7. Passwords and Access

7.1 The Licensee shall be responsible for all activities that occur and transactions that are effected under the Licensee’s user accounts.

7.2 The Licensee shall be responsible for maintaining the security and confidentiality of the User’s username and password.

7.3 The Licensee shall immediately take all appropriate measures to stop and/ or restrain such unauthorized use of any username, password, account and/or any other known or suspected breach of security if the Licensee becomes aware of the same.

7.4 The Licensee hereby agrees to notify the Licensor immediately of any unauthorized use of any username, password, account and/or any other known or suspected breach of security.

 

8. Use of Software and Hardware

8.1 The Licensee and its User(s) shall not use the Software and Hardware for any purpose that is illegal, misleading, defamatory, indecent, obscene, threatening, infringing of any third party proprietary rights, and invasive of personal privacy.

8.2 The Licensor reserves the right to remove any Data that constitutes material that is illegal, misleading, defamatory, indecent, obscene, threatening, infringing of any third party proprietary rights, and invasive of personal privacy, but is not obliged to do so.

8.3 The Licensor also reserves the right to immediately suspend or terminate the account(s) of the User that uses the Software and Hardware for any purpose that is illegal, misleading, defamatory, indecent, obscene, threatening, infringing of any third party proprietary rights, and invasive of personal privacy.

 

9. Data

9.1 Upon the expiry of the Term and should the Licensee elects not to subscribe to this Licence for a fresh Term, the Licensee shall not be allowed to retrieve any Data provided or submitted by the Licensee to the Licensor’s Software. The Licensee shall only be allowed to retrieve its Data upon a fresh subscription of the Software for a new Term and fee agreeable between the Licensor and the Licensee.

9.2 On termination of subscription, no database will be provided. Licensee can download all the various reports from the Website before the expiration of the Term.

9.3 The Licensor will use commercially reasonable security measures to protect the Data against unauthorized disclosure or use.

 

10. Third Party Technology Supplier’s Software

10.1 The Licensor utilizes Third Party Software and Hardware.

10.2 The Licensee shall not do anything that infringes and/or breaches the licensing rights of the Licensor or the proprietary rights, title and/or interest of the owner of the Third Party Software.

 

11. Intellectual Property Rights

All rights, title and interest in the Software (including without limitation all Intellectual Property Rights) vest in and remain with the Licensor at all times and the Licensee acquires no rights whatsoever therein save and except as granted under the Licence. Rights and title of the Hardware may be transferred to Licensee upon meeting certain terms and conditions set by the Licensor.

 

12. No Warranty

12.1 The Licensor makes no warranty whatsoever to the Licensee in respect of the Software, Hardware or the media on which it is contained.

12.2 The Licensor and its Third Party Technology Supplier does not warrant that the Software and Hardware will be free from errors and/or defects or that it will meet all the requirements of the Licensee.

 

13. Implied Terms

13.1 Subject to Clause 13.2 of this Agreement, any condition or warranty which would otherwise be implied into these terms and conditions is hereby excluded. To the extent permitted by law, the Licensor hereby excludes any and all warranties which may be applicable to the Software, Hardware and the media on which the Software and Hardware are contained which may be implied by law or otherwise, including any and all warranties as to merchantability and/or fitness for a particular purpose.

13.2 However, the liability of the Licensor for any breach of any warranty under this Agreement in respect of the Software and Hardware shall be limited, at the sole option of the Licensor, to one or more of the following:-

a) If the breach relates to the Software:-

(i) the replacement of the Software, Hardware or the supply of software and hardware of equivalent quality, standard, application and functionality as the Software in all material respects;

(ii) the rectification of any defects or errors in the Software; or

(iii) the payment of the cost of replacing the Software and Hardware which is of equivalent quality, standard, application and functionality as the Software in all material respects; and

b) If the breach relates to services provided by the Licensor to the Licensee in connection with the Licence to use the Software;

(i) the supplying of the services again by the Licensor.

 

14. Termination

14.1 For the purpose of this Agreement, the following shall be deemed to be events of termination:-

a) any breach or threatened breach by the Licensee of any of its material obligations under this Agreement which is incapable of remedy or, which is capable or remedy, is not remedied within thirty (30) days of receipt of a written notice from the other party specifying the nature of the breach and requiring its remedy;

b) the appointment of a receiver or manager over the whole or any part of the property or undertaking of a party or the commencement of any winding-up or liquidation proceedings against the Licensee;

c) the entry or proposed entry by a party into any scheme, composition or arrangement with any of its creditors of the Licensee;

d) any other event described in this Agreement as being an event which would entitle either party to terminate this Agreement.

14.2 The Licence may be terminated immediately on the occurrence of a terminating event at the option of the Licensor.

14.3 Should the Licensor wishes to terminate this Agreement for reasons apart from the terminating events pursuant to Clause 14.1, a three (3) months notice period is required to be given to the Licensee in accordance with Clause 18.

14.4 Neither party shall be liable for the consequences of an occurrence of any force majeure events as defined in Clause 23 of this Agreement.

14.5 Any termination of the Licence shall not affect any accrued rights or liabilities of either parties who shall be liable for any antecedent breaches of this Agreement, nor shall it affect any provision of this Agreement which is expressly or by implication intended to continue in force after such termination.

 

15. Limitation of Liability

15.1 The Licensor shall not be liable to the Licensee under Clause 15.1 of this Agreement if:-

a) the Licensee does not notify the Licensor of the third party’s claim of infringement of any Intellectual Property Rights within seven (7) days after becoming aware of the claim; or

b) the Licensor’s ability to defend the claim has been prejudiced by the Licensee’s non-compliance with any of its obligations under this Agreement; or

c) the Licensee does not give the Licensor reasonable assistance in defending the claim; or

d) the claim has arisen because of the use of the Software in combination with equipment, materials or computer programmes, software or applications not supplied or approved by the Licensor; or

e) the Licensee does not permit the Licensor to have control of the defence of the claim and all related settlement negotiations with the third party.

15.2 The Licensor shall not be liable to the Licensee for any special, indirect or consequential loss or damage (including without limitation loss of revenue, loss of profits, loss of business opportunity or loss of data) arising out of or in connection with any breach of this Agreement by the Licensor or any act or omission of the Licensor, even if the Licensor is aware of or has been advised by the Licensee as to the possibility of such losses being incurred.

15.3 To the extent permitted by law, if the Licensor is held by any court of competent jurisdiction to be liable to the Licensee for any losses or damages arising out of any breach of this Agreement by the Licensor or any act or omission of the Licensor, the liability of the Licensor shall not exceed the amount (if any) paid by Licensee for the then current Term. The parties hereby agree that the amount of the paid for the current Term represents a reasonable pre-estimate of loss or damage which the Licensee may suffer in the event of any breach by the Licensor of this Agreement or arising from any act or omission of the Licensor in respect of its obligations under this Agreement.

 

16. Indemnity for Software Usage

The Licensee agree to indemnify and hold harmless the Licensor and its Third Party Technology Suppliers from any claims, damages, liabilities, costs, and fees arising from the use of the Software as well as from the Licensee’s failure to comply with any term of this Agreement.

17. Assignment

17.1 This Agreement may not be assigned by the Licensee without the prior written approval of the Licensor but may be assigned by the Licensor to:-

a) an acquirer of all or substantially all of the Licensor’s assets involved in the operations relevant to this Agreement; or

b) a successor by merger or other combination.

17.2 Any purported assignment in violation of this section will be void.

17.3 This Agreement may be enforced by and is binding on permitted successors and assigns.

 

18. Notice

18.1 The Licensor may give notice to the Licensee by means of electronic mail to the Licensee’s email address on record in the Licensee’s account or by written communication sent by hand, by registered post or by facsimile to the person and address of the Licensee or such other person and address in the Licensee’s account.

18.2 The Licensee may give notice to the Licensor by means of electronic mail to such email address as provided by the Licensor at any material time.

18.3 A party may, by giving notice, change its applicable address, email, or other contact information.

 

19. Entire Agreement

This Agreement supersedes all prior agreements, arrangements, understandings and undertakings between the parties and constitutes the entire agreement between the parties relating to the Software, Hardware and the Licence granted hereunder.

 

20. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of Malaysia and the parties hereto hereby submit to the jurisdiction of the courts of Malaysia in all matters connected with the obligation and liabilities of the parties under this Agreement.

 

21. Severability

Should any part of this Agreement be or become invalid, that part shall be severed from this Agreement. Such invalidity shall not affect the validity of the remaining provisions of this Agreement which shall continue in full force and effect and be valid and binding on the parties.

22. Dispute Resolution and Arbitration

22.1 Any dispute or difference arising out of or in connection with this Agreement (including without limitation as to its validity) shall be first resolved by the parties through discussions in good faith. Any dispute which is not resolved by the parties as aforesaid within sixty (60) days of the dispute arising shall be submitted to arbitration in accordance with, and subject to, the rules of the Kuala Lumpur Regional Centre for Arbitration (“ KLRCA”).

22.2 The parties shall appoint an arbitrator who is acceptable to both parties to arbitrate the dispute. In the event the parties are unable to agree on an arbitrator within sixty (60) days of the dispute being referred to arbitration, the Chairman for the time being of the KLRCA shall appoint the arbitrator, and the decision of the Chairman as aforesaid shall be binding on the parties.

22.3 The arbitration proceedings shall be held in Malaysia and shall be conducted in the English language.

22.4 The reference of any dispute to arbitration in accordance with this Clause 22 shall not excuse the parties from continuing with the performance of any other obligations under this Agreement which are not affected by the dispute.

23. Force Majeure

23.1 If by any reason of any event of force majeure, any of the parties to this Agreement is delayed in or prevented from or hampered in performing any of its obligations under this Agreement, then such delay or non-performance shall not be deemed to be a breach of this Agreement. In such an event, the obligations of the party so affected by the force majeure event shall be suspended during the period of such force majeure event, and the affected party shall use all reasonable endeavours to minimize and reduce any period of suspension occasioned as aforesaid.

23.2 For the avoidance of doubt, a force majeure event shall include, but shall not be limited to acts of Gods, acts or omissions of any government or any rules, regulations or orders of any governmental authority or any officer, department, agency or instrument thereof; fire, storm, floor, earthquake, accident, acts of public enemy, war, rebellion, insurrection, riot, invasion, strikes, or lockouts, or anything regarded as being beyond the control of the party in question.