Terms of Service Rych

Terms of Service

This Agreement is made between 3Rych Sdn. Bhd., a private limited company incorporated under the Malaysian law, with registered office at Petaling Jaya, Selangor. The company is registered with the Companies Commission of Malaysia under the registration number 202001018190 (1374510-H) (“3Rych”), and Customer.

The Agreement governs Customer’s licensing and use of the Services. By using our Services, Customer agrees to the terms of this Agreement as of the Effective Date.

Any deviation from this Agreement should only be valid if and agreed upon by and between the Parties in writing.

WHEREAS:

1. 3Rych is a Service provider and offers solutions to companies and businesses for information & communication services and sales of related products & accessories.
2. Customer wishes to use 3Rych’s Service in its business operation.
3. 3Rych wishes to provide Service to Customer and Customer wishes to use and pay for its service in accordance with the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements, covenants and representations contained herein, the Parties agree to the following:

• Definitions
  
  

• “Affiliate” means, in relation to either Party, any legal person which is Controlled by, Controls or is under common Control with, such person. Control meaning with respect to the relevant person, (i) the direct or indirect ownership or control of more than 50% of the (a) ownership interests or (b) voting power at the general meeting or a similar body, of that person, or (ii) the right or ability to appoint or remove such number of the members of the board or a similar body of that person with decisive voting power in such body.

• “Agreement” means the Terms of Services and any exhibits, annexes, and addenda hereto.

• “API” means application programming interface.

• “Applications” means software-based tools that provide a visual interface designed to operate and utilize the Platform.

• “Channels” means the services that allow point-to-point information exchanges between Customer and the end-users of the Messages such as SMS, Voice, Chat, and E-mail.

• “Channel Bridging” means the Portal acts as a bridge role between 3Rych and third party sub-processors.

• “Claim” means a third-party claim, demand, suit or proceeding.

• “Commercial Launch Date” means the date specified in which 3Rych shall start charging Customer for the Services.

• “Confidential Information” means information maintained in confidence by a Party, information which is marked as such, or information whether written or oral that by its nature would be understood, by a reasonable person under the circumstances, to be confidential information of a party. For the avoidance of doubt, the specific content of this Agreement, details of the Platform, supporting documentation, the Service, any data or information transmitted by Customer through the Platform or used by Customer for or in connection with the Service and the results of any performance tests will be regarded as Confidential Information.

• “Customer” means any company, business or any other entity acting in the exercise of a profession or business to which 3Rych provides Services and which is named as such.

• “DPA” means the Data Processing Annex which forms part of this Agreement. In case of conflict or inconsistencies between the data protection related provisions of the Agreement and the DPA, the DPA will prevail.

• “Data Protection Legislation” means all relevant requirements of the applicable data protection legislation, including without limitation, the General Data Protection Regulation (EU) 2016/679 and the Personal Data Protection Act 2010. For the avoidance of doubt, PDPA references shall only apply to Malaysian Consumers.

• “Effective Date” means when (i) both Parties execute an Agreement, (ii) when Customer registers an account on the Portal, or (iii) when Customer starts using the Services

• “End-user” means the private individual who ultimately receives the communications sent by Customer or its Affiliates via the Services.

• “Fees” means the prices paid by Customer for the access and use of the Service.

• “Guidelines” means the terms outlined in the Agreement or on the Site.

• “Inappropriate Content” means collectively any content that (i) is unsolicited, including without limitation, “junk mail”, “bulk email”, spam or other unsolicited material; or (ii) qualifies as spam under any applicable laws and regulations; or (iii) potentially causes the introduction of harmful computer programs or code in the Platform or End-User’s devices; or (iv) violates any legal, regulatory, self-regulatory, governmental, statutory or telecommunication network operator’s requirements or codes of practice, or Third-Party Application Terms; or (v) is unlawful, pornographic, abusive, racist, obscene, offensive, threatening, harassing, defamatory, discriminatory, misleading or inaccurate; or (vi) is harmful or malicious content, including but not limited to hate speech, and any other material that 3Rych reasonably believes degrades, intimidates, encourages violence against, or foments prejudicial action against anyone based on gender, race, age, ethnicity, nationality, religion, sexual orientation, disability, geographic location or other discrimination reason; or infringes the intellectual property rights of any person or entity; or (vi) is illegal in any other way.

• “Integrations” means the interoperable and coordinated use of the Services within Third-Party Applications.

• “Licensed Material” means the Platform, the API, all Software and related documentation provided by 3Rych.

• “Managed Services” means support-based services that provide onboarding and support of the Customer as they utilize the Platform, such as the Support Plan.

• “Message” or “Messages” means a set of systematized, textual, numerical, graphical or phonetical characters transmitted between Customer and an End-User over the Channels

• “3Rych Library” means the developers’ resources concerning the use of the Service available on the Site.

• “Network Adds-on” means additional telecom network services.

• “Party” or “Parties” means 3Rych and Customer individually or together.

• “Platform” means the  communication platform of 3Rych.

• “Portal” means 3Rych’s Rych Portal available on the Site.

• “Site” means Rych Portal web domains, including the pricing and all other webpages thereof, available at www.rych.io and https://portal.rych.io .     

• “Service” or “Services” means all services and subscriptions provided by 3Rych to Customer, including, without limitation, the Managed Services, the Platform, the Software, the API, the Solutions and the Channels (generally referred to, unless the context requires otherwise or is differently defined).

• “Solution” means the prepackaged and preconfigured components of the Platform designed to execute a predefined process and produce a specific result which uses the Platform and enables Customer to communicate with its clients by means of the Channels.

• “Subscription” means the plan Customer elects for access to and/or use of the Services.

• “Subscription Fee(s)” means the recurring fees as described in the Agreement where Customer is charged for the Subscription. In the event Customer decides to upgrade its Subscription, the relevant Subscription Fee of the higher-tier Subscription shall apply pro-rata for the remainder of the term of the Services. Any changes to the Subscription Fee shall be applicable as of the date of renewal of the Services.

• “Support Plan” means the managed support services provided by 3Rych to Customer in accordance with the Guidelines. Customer understands and agrees that upon the occurrence of any of the scenarios mentioned above, Customer is committed to the applicable Support Plan for a minimum period of twelve months or as described in the Portal.

• “Taxes” means any and all applicable taxes, fees, charges, telecommunications provider surcharges, withholding taxes or other similar taxes, including, but not limited to, SST and/or GST  and/or whichever applicable.

• “Third-Party Applications” means third-party internet-based or offline enabled software applications, operating systems, and other types of platforms that interoperate with the Service to enable its complete range of functionality. For the avoidance of doubt, telecom network providers (such as network (mobile) operators or virtual (mobile) network operators) are excluded from this definition.

• “Third-Party Applications Terms” means the terms and conditions, and/or usage policies which directly or indirectly apply to use of the Third-Party Applications by Customer.

• “Transactional Fee(s)” means the fees for the use of the Services.

• “Trial Period” means the period agreed by the Parties for the Customer to use the Services in accordance with clause 15 of the Agreement.

• Fees

• Customer agrees to pay the Fees as set forth on the Site’s pricing page, as may be updated from time to time, or as agreed otherwise in the Agreement and/or Portal.

• Unless otherwise stated, all Fees excludes any applicable Taxes, including any related interest and/or penalties, and other government duties, as well as any other costs, such as transaction costs or bank transfer fees. In the event that Taxes are (or will be) applicable to the Services set out in this Agreement, such Taxes shall be added to the Fees. Customer shall be responsible for and pay all Taxes as well as any other costs imposed on or with respect to the Services that are subject to this Agreement. If Customer is exempt from tax, or if tax should be accounted for under a reverse charge mechanism or similar procedure, it is the responsibility of Customer to provide a valid tax registration number. If for any reason the local taxing authorities determine that Customer is not exempt from any such Taxes and imposed such Taxes to 3Rych, Customer agrees to promptly pay 3Rych such Taxes, including any applicable interest or penalties imposed by the local tax authorities.

• If Customer is required by law to withhold or pay Taxes, levies and/or fees of any nature, Customer shall withhold or pay such Taxes, levies and/or fees and shall timely pay the full amount(s) to the relevant governmental authority in accordance with applicable law. 3Rych shall not be responsible for such Taxes, levies and/or fees. Additionally, the Fees payable by Customer to 3Rych shall be increased as necessary so that, net of such payments, Customer will pay 3Rych such additional amounts as are necessary to ensure recipient of the full amount which 3Rych would have received before the withholding or paying of Taxes.

• Provision of Services

• The Service shall be provided subject to the terms of this Agreement and according to the terms as specified and/or the Site.

• The Services are designed and aimed to serve companies and businesses and are not suitable for personal or household use by private individuals.

• Use of Third-Party Applications. The Service may enable Customer to use, link, integrate, or otherwise use Third-Party Applications. By using such Third-Party Application with the Service, Customer agrees to comply with the applicable Third-Party Applications Terms and where necessary authorises 3Rych to accept such Third-Party Applications Terms on Customer’s behalf. For the avoidance of doubt, Customer warrants to comply with any applicable Third- Party Application Terms, and 3Rych will have no liability in connection therewith.

• Changes to the Services. 3Rych reserves the unilateral right to change the features and functions of its Platform, the Software, the Connectivity Services and the Service in general, provided that such changes do not adversely affect the use of the Service by the Customer. 

• Pricing and Payment Terms

• Paid Services. For the avoidance of doubt, 3Rych shall start charging Customer the Fees for the Service as per the Agreement. Start Date or, as of when Customer starts using the Services.

• Overdue Fees. 3Rych may charge interest as per the maximum amount permitted by law if the Fees are not paid within the term specified in the Agreement and/or on the Site. If Customer is more than seven (7) days overdue on its payment obligations, this constitutes a material breach of this Agreement.

• Monthly Credit Limit. If applicable, Customer shall adhere to any monthly credit limit. If Customer does not reach the monthly credit limit amount by the end of a calendar month, 3Rych will invoice Customer at the end of such corresponding calendar month for its usage of the Services. If Customer reaches the monthly credit limit before the end of the corresponding calendar month, 3Rych will invoice Customer and such an invoice shall be due and payable immediately.

• Suspension of Service. 3Rych may suspend the provision of the Service with immediate effect if Customer fails to comply with any applicable payment obligations and if Customer exceeds the monthly credit limit as specified in the Agreement and/or on the Site. 3Rych has the rights to suspend any suspected account for investigation and provide response within thirty (30) days. For any avoidance of doubt, the suspected account may be suspended (including but not limited to the reason(s) of 3Rych’s suspicion that the account is being and/or found hacked and/or containing junk messages affecting any performance of the account and/or Portal.

• Fees changes. Unless differently specified in the Agreement and/or the Site, 3Rych may change the Fees for the Services anytime. Any changes of the Fees will be published on the website of www.rych.io or its related sub-portal.

• Prepaid credit. Unless differently specified in the Agreement or on the Site, any prepaid balance or credits purchased by Customer will lapse if Customer does not use the balance or credits within timeline stipulated in the Portal after the purchase date. 3Rych is not obliged to refund any prepaid balance or credit.

• Currency. The currency of this Agreement shall be defined in the Agreement and/or the Site. 

• Invoice Disputes. Customer shall raise any dispute or other claim regarding an invoice, including any billing discrepancy, or other notice issued by 3Rych under this Agreement within fifteen (15) days after the date of such invoice or notice, in writing to 3Rych. If Customer fails to raise any dispute or claim, Customer no longer has any right under this Agreement to bring any dispute or claim regarding such invoice or notice. Customer understands and agrees that any billing disputes have to be made specific as to the relevant Service and the price charged for such Service. Any such dispute does not waive, delay or uphold any payment obligations of Customer (other than for disputed amounts).

• Term and Termination

• Term. This Agreement commences on the Effective Date and shall continue as long as Customer uses the Services and to the extent applicable, not later until all Services entered into under this Agreement have expired or have been terminated. 

• Termination by both Parties. In addition to clause 5.1, either Party may suspend or terminate this Agreement with immediate effect, without being liable to pay any compensation or reimbursement, by notifying the other Party if any of the following events occurs and each of these events will be deemed to be a cause attributable to such other Party:

1. the other Party has ceased to exist or has been dissolved; or
2. the other Party has stopped doing business; or
3. the other Party commits a material breach of its obligations under this Agreement which is not remedied within fourteen (14) days of written notice from the non-breaching party requesting the breach to be remedied.

• Unilateral Termination by 3Rych. 3Rych may terminate this Agreement or the provision of certain Services to Customer with immediate effect by notifying Customer if 3Rych reasonably considers that Customer’s use of the Service is contrary to applicable laws and/or regulations or public order and morality, or breaches the terms and conditions of this Agreement or of other agreements with third parties which are involved in the provision of Services, as well as in case of misrepresentation by the Customer in regards to clause 11.3 of this Agreement. 

• Acquisition Clause. In the event that 3Rych is acquired by another company, the account will be automatically transferred to the acquiring company together with its prepaid payment upon the other Parties’ agreement on the use of existing account.

• Effect of Termination. Upon termination of this Agreement for any reason:

1. all Licensed Material granted under this Agreement shall immediately terminate;
2. outstanding and undisputed payment obligations will become immediately due and payable;
3. Customer shall immediately cease all use of the Service;
4. 3Rych will reasonably cooperate to the extent required with Customer and its service providers in the migration of the  Service to a successor service provider selected by Customer, except in the event the Agreement’s termination is caused by Customer’s breach of this Agreement;
5. 3Rych shall not be obliged to refund any prepaid balance on the account; and
6. 3Rych reserves the right to charge any remaining committed Fees despite the termination.

• Customer Obligations
  
  

• Customer shall pay for the Service in accordance with the terms set out in the Agreement and/or on the Site.

• Customer acknowledges and understands that 3Rych:

1. is only a conduit for the transmission of information sent by Customer, and 3Rych neither initiates the transmission of information, selects the receivers of the transmission, nor selects or modifies the information contained in the transmission;
2. when using the Service, Customer is responsible for determining whether the Service is suitable for Customer to use in light of applicable laws and regulations, such as, and without limitation, consumer protection and 3Rych is not liable if the Service does not comply with such laws and regulations.

• Customer may not use the Service or permit it to be used to:

1. transmit Inappropriate Content;
2. interfere with or disrupt the integrity or performance of the Service in whatever way; and
3. access the Service in order to build a competitive product or service that may compete with 3Rych’s Services.

• Customer is solely and fully responsible for:

1. the content of the communications sent by Customer or by a third-party on behalf of Customer and shall ensure on-going compliance with the applicable laws and regulations. Customer shall implement adequate measures to prevent the Service being used directly or indirectly for illegitimate purposes, or in violation of this Agreement or applicable laws and regulations, or Third-Party Applications Terms; and
2. procuring and maintaining its network connections and telecommunications links from its systems to 3Rych, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunication links or caused by the internet.

• Customer shall, at its own expense, take all security measures necessary to:

1. prevent any unauthorized and/or third-party access to Customer’s passwords, accounts or keys to the Platform;
2. prevent spam and fraudulent traffic by implementing blacklists, content filters and other suitable controls; and
3. ensure timely detection of and response to security incidents, by implementing security monitoring tooling and having security incident response plans and procedures in place.

• Customer shall conduct regular vulnerability assessments and penetration testing to ensure its implementation of the Service is secure.

• Customer shall inform 3Rych by sending an email to info@rych.io within twenty- four (24) hours of becoming aware of any breach or security incident involving the  Service.

• Customer shall provide promptly all information reasonably requested by 3Rych:

1. to confirm Customer’s compliance with its obligations under this Agreement, the applicable laws and regulations; or
2. in response to any request made by any legal, regulatory, self-regulatory, governmental authority, supplier, or operator of a telecommunication network or system.

• Customer may not use the Services to perform or/and resell services substantially similar to the Services without the express prior written consent of 3Rych.

• Customer shall (i) comply with all applicable international trade laws, including without limitation, (a) economic or financial sanctions, requirements or trade embargoes imposed, administered or enforced from time to time by Malaysian Governmental Authorities (including, but not limited to International Trade Laws, and shall obtain all export licenses and/or governmental approvals, whenever necessary. Customer guarantees and ensures that (i) neither it or its directors, officers, affiliates, employees or agents is named on or owned or controlled by any person or entity named on, any list of designated persons or entities of Malaysia (including but not limited to the European Union), and/or any other applicable jurisdictions under International Trade Laws or otherwise the target of International Trade Laws (a “Sanctions Target”) (ii) it is not located, organized or resident in any jurisdiction subject to comprehensive sanctions under International Trade Laws, and (iii) it will not (a) permit any end-user or any other person or entity to access or use the Service if the end-user is a Sanctions Target or (b) permit end-users or any other persons or entities to access or use the Service in violation of any International Trade Laws or in a manner that could cause 3Rych or any of its directors, officers, affiliates, employees or agents to be in violation of International Trade Laws.

• Non-Disclosure of Confidential Information
  
  

• The receiving Party shall use the disclosing Party’s Confidential Information only for the provision or receipt of the Service and shall share this information only on a “need-to-know” basis with its employees, Affiliates and other contractors, provided that they are under a legal obligation to keep the Confidential Information confidential.

• The receiving Party may disclose Confidential Information in connection with a competent judicial or administrative proceeding to the extent that such disclosure is compelled by law or court, provided that the party required to disclose the Confidential Information, to the extent permitted by law, (a) gives prompt notice to the other party and (b) uses reasonable efforts to minimize such disclosure.

• A Party’s Confidential Information does not include information that:

1. is or becomes publicly known other than through unauthorized disclosure;
2. is lawfully disclosed to the receiving Party by a third-party without restriction on disclosure; or
3. is independently developed by the receiving Party, which independent development can be shown by written evidence.

• Each Party shall hold all Confidential Information relating to or obtained from the other Party confidential in perpetuity.

• Data Protection
  
  

• All personal data shared between the Parties shall only be used for the purposes of this Agreement. Each Party shall comply with the Data Protection Legislation.

• The Parties acknowledge that 3Rych is a data processor for the purpose of processing personal data on end-users when providing the Service to Customer.

• Customer acknowledges and consents the profiling function which allows customer to save, delete, modify, tagging of contacts, demography and/or category in order to retrieve for analytics, communication and/or download by the Parties.

• Customer shall ensure that it has obtained all required and valid consents under the Data Protection Legislation when required for the processing of personal data by 3Rych for the performance of the Service. Customer acknowledges that 3Rych has the right to monitor and intercept any electronic communications sent or received by Customer under the Service for the purpose of verifying compliance under this Agreement.

• To the extent 3Rych processes personal data on the profile in the Portal and on instruction of Customer, 3Rych shall comply with the DPA. Customer confirms that it has read and agrees with the privacy statement of 3Rych, which can be found on the Site.

• 3Rych will delete Customer’s personal data in the Portal which is not saved by Customer as a profile within a stipulated timeframe in order to clear and/or control data space.

• 3Rych will delete Customer’s personal data in the Portal after the end of the provision of the Services unless differently required by the applicable laws and regulations.

• In any event, 3Rych shall not be liable to any Profile lost, damage and/or corrupt.

• Proprietary Rights, Licenses and Trademark
  
  

• 3Rych hereby grants to Customer a personal, non-exclusive, non-transferable, royalty-free license during the term of this Agreement to use the Licensed Material, which are necessary for Customer to use the Service as agreed under this Agreement.

• Subject to the limited rights expressly granted hereunder, 3Rych reserves all of its right, title and interest in and to the Service and the Licensed Material, including all of its related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

• Customer has the right to access and use the Licensed Material subject to the terms of this Agreement.

• Customer will not sell, resell, license, sublicense, distribute, make available, rent or lease any  Service or Licensed Material, to any third-party. This restriction does not apply to the use of the Services by Customer’s Affiliates provided that the Customer remains liable for the actions and omissions of its Affiliates in connection with the Affiliates’ use of the Services.

• Neither Party shall not use the trademarks, logos or trade names of the other Party for any purpose without the prior written consent of the other Party. Customer agrees that 3Rych, in its sole discretion and respecting any confidentiality undertaking in force between Customer and 3Rych, may, aligned with best industry practices, use Customer’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and Web site listings (including links to your website) for the purpose of demonstrating Customer’s use of the Services.

• 3Rych confirms that it has all the rights in relation to the Licensed Material that are necessary to grant the rights it purports to grant under, and in accordance with, the terms of this Agreement.

• Liability
  
  

• Liability by 3Rych. If the Services infringe any third-party patents, copyrights, trademarks, or other proprietary right under the laws of Malaysia and if 3Rych receives information about an infringement related to the Service, 3Rych may, in its discretion, and at no cost to Customer:

1. modify the Service so that it no longer infringes or misappropriates,
2. obtain a license for Customer’s continued use of that  Service in accordance with this Agreement, or
3. terminate Customer’s use of that infringing Service upon thirty (30) days’ prior written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.

The above defense and indemnification obligations do not apply to the extent a claim arises from or relates to:

1. the Customer and End-User data,
2. the Third-Party Applications,
3. the Customer’s or any user’s breach of this Agreement,
4. any modifications of the Service by or for Customer,
5. the use of the Service in combination with another product or service not provided by 3Rych, or
6. the failure to timely implement any modifications, upgrades, replacements or enhancements made available by 3Rych to the Customer.

This clause provides 3Rych’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any third-party claims related to the Service or this Agreement.

• Indemnification by Customer. Customer shall be fully responsible, shall hold 3Rych fully harmless and shall fully reimburse 3Rych, without limitation, at its first demand, for all and any direct and/or indirect damages, costs, claims, expenses and other liabilities of 3Rych (including, but not limited to, fines, other penalties or damages resulting from any sanctions imposed on 3Rych or claims made against 3Rych, by any End-Users, and/or state authorities, Third-Party Applications and/or any other third parties) resulting from
  
  

1. 1. any allegation that the use of the  Service by Customer results in any infringement of the rights of any third-party, including End-Users, law or regulation, and/or
   2. Customer’s breach of any of its obligations under this Agreement, and/or
   3. any content in particular, any Inappropriate Content transmitted by Customer, any use of Third-Party Applications.

• Indemnification Procedures. The indemnifying party’s obligations are conditioned upon the indemnified party (i) giving the indemnifying party prompt written notice of the claim to the extent possible, and (ii) granting full control of the defense and settlement to the indemnifying party (provided however, the indemnified party may participate with counsel of its choosing at its own expense).

• Exclusion of Liability. 3Rych shall in no way or manner be held responsible or liable to Customer, its contractual partners or End-Users for:

1. faults, errors or delays in the delivery, transmission, re-transmission or reception of, or parts thereof, the Services;
2. for any content, in particular, any Inappropriate Content transmitted by Customer.

• Limitation of Liability
  
  

• 3Rych’s cumulative liability to customer for all claims arising from or relating to the Agreement or the Service, whether in contract, tort, or relating to otherwise, will not exceed the total amount of all Fees paid to 3Rych in accordance with the Agreement and all orders hereunder during the twelve (12) months immediately prior to the date upon which any such liability arises. Customer acknowledges and agrees that the allocation of the risks under this Agreement is the essential purpose of this clause and that the Fees would be substantially higher if 3Rych were to assume any further liability other than as set forth in this Agreement.

• Except if explicitly provided otherwise in this Agreement, no Party is ever liable (whether in contract, tort – including negligence – or otherwise) for indirect damages, consequential damages, loss of revenue, business, anticipated savings or profits, damages resulting from third-party claims or loss of data.

• Warranties

11.1 3Rych makes no warranties, whether express, implied or statutory with respect to the Services, the Platform or the Services and 3Rych expressly disclaims any implied warranties to merchantability, merchantable quality or fitness for a particular purpose.

• 3Rych expressly does not guarantee that the Services will be uninterrupted or error free, are received properly and/or on time by the end-user. Customer acknowledges in this respect that 3Rych only operates as a conduit for the transmission of electronic communications.

• By using our Services, Customer represents and warrants that it is a company and/or business and has the power to enter into this Agreement. In case of any misrepresentation by Customer in regard to the aforementioned confirmation, 3Rych reserves the right to immediately withdraw from this Agreement, without being liable for any damages or costs related to such withdrawal.

• Customer represents and warrants that it has full knowledge of and fully complies with all local requirements applicable to the use of the Services in the jurisdictions where it operates.

• The Customer guarantees and warrants that it has and will maintain all necessary licenses, consents and permissions necessary for the use of the Service.

• Force Majeure
  
  

• Except for the payment of Fees, each Party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control in the event (i) it could not have been avoided or corrected through (a) the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, labour strikes not involving either party’s employees, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of Third-Party Applications, failure of any third-party operating systems, platforms, applications or networks not under reasonable control of 3Rych, or (b) other similar occurrence; in addition, the Parties will be excused from future performance under this Agreement, if (ii) any Party becomes the subject or target of economic or financial sanctions or restrictive measures administered or enforced by competent governmental authorities, or (iii) the performance of any aspect of this Agreement would require a Party to this Agreement to engage in a transaction with a person that is or is owned fifty percent (50%) or more in the aggregate by any person that is the target of economic or financial sanctions or restrictive measures administered or enforced by competent governmental authorities or is otherwise subject to restrictive measures.

• Injunctive Relief

• Both Parties acknowledge that any unauthorized use of the Service or breach of confidentiality or intellectual property provisions herein may cause irreparable harm to the other Party, the extent of which would be difficult to ascertain. Accordingly, both Parties agree that, in addition to any other remedies to which a Party may be legally entitled to, either Party will have the right to seek injunctive relief in the event of such a breach.

• Early Access and Beta products.

• 3Rych may look for Customers to help test new services or new features. If 3Rych wishes for Customer to test early release or beta features/services, 3Rych will request whether Customer would like to test such early release or beta features/services in writing. Early access and beta products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties, indemnities, or contractual commitments of any kind.

• Trial Period.

• The rights and obligations set out in the Agreement apply to the use of the Services in the Trial Period. Customer is entitled to terminate the Agreement before the Trial Period expires free of charge. Failure to terminate the Agreement before the end of the Trial Period, as per the terms and conditions indicated in the Agreement or on the Site will result in the applicable Fees to apply for the period agreed on the Site or the Agreement.

• Dispute Resolution and Governing Law

• Governing Law. This Agreement and any dispute or claim arising out of or in connection with this Agreement, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of Malaysia.

• Venue. Each Party irrevocably agrees that the competent courts of Malaysia will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including non-contractual disputes or claims).

• Miscellaneous

• Notices. The Parties shall give any communication or notice in writing and such notice or communication shall be sent by e-mail to the designated addresses of the relevant Party as mentioned in the platform, provided that email will not be sufficient delivery shall be by hand, sent by registered mail or courier. A notice shall be deemed to have been given upon the first business day after sending by email. Customer will be deemed to have received any email sent to any such email address, upon 3Rych sending of the email, whether or not Customer actually receives the email.

• Entire Agreement. This Agreement, as amended from time to time in accordance with this Agreement, represents the entire Agreement between the Parties in relation to the subject matter hereof and supersedes all prior agreements and understandings whether oral or written with respect to the subject matter hereof. The following annexes may be executed by the Parties:

1. Data Protection Annex (DPA)

• No Partnership. Nothing in this Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency between any of the Parties hereto and none of them shall have any authority to bind the others in any way.

• Waiver. No failure to exercise nor any delay in exercising any right, power or remedy by a Party will operate as a waiver. A single or partial exercise of any right, power or remedy will not preclude any other or further exercise of that or any other right, power or remedy. A waiver will not be valid or binding on the Party granting that waiver unless made in writing.

• Severability. If any provision or any part of this Agreement is or becomes in any way non-binding, the Parties will remain bound to the remaining part. The Parties shall replace the invalid or non-binding part by provisions which are valid and binding and the effects of which given the contents and purpose of this Agreement, are, to the greatest extent possible, similar to that of the invalid or non-binding part.

• Changes and Modifications. 3Rych reserves the right to unilaterally change or modify any of the terms and conditions contained in this Agreement. 3Rych will make reasonable efforts to notify Customer of such changes, which may include posting an announcement on the website, in-application notices, or via email. Customer’s continued use of the Service following 3Rych’s posting or notice of the change(s) will constitute Customer’s acceptance of such change(s).

• Assignment. Customer acknowledges that 3Rych will be entitled to assign the entirety of its rights and obligations under this Agreement:

1. within its group of companies to any Affiliate; or
2. to a third-party which acquires all or substantially all of the assignor’s assets entailed in the performance of the  Service; Any assignment of the rights and obligations under this Agreement of Customer shall be effective only with the prior written consent of 3Rych.

• Hierarchy of Documents. If there is a conflict between any of the provisions of this Terms of Services and the provisions agreed in the Agreement, the provisions in the Agreement or those contained in the Platform shall prevail.

• Definitions and Headings. Capitalized terms defined in this Agreement shall have the same meaning in all Schedules hereto, save where the context requires otherwise.

Data Processing Annex (DPA)

This Data Processing Annex applies to all processing of personal data on End-Users that Customer provides to 3Rych through the Services.

Terms such as “personal data”, “processing”, “data controller”, “data processor”, “personal data breach” etc. shall have the meaning assigned to them under the applicable data protection legislation, such as the Regulation (EU) 2016/679 (General Data Protection Regulation), except for the definition of sub-processor which explicitly excludes telecom carriers and other telecom service providers which are deemed necessary for the operation of the Services, yet, due to the fact that such parties are acting as a mere conduit or as an independent data controller, do not fall under the definition of data processor as stated in the Data Protection Legislation. Additionally, the definitions of: “controller” includes “Business”; “processor” includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under the PDPA.

3Rych and Customer both acknowledge and agree that the exchange of personal data between the Parties does not form part of any monetary or other valuable consideration exchanged between the Parties with respect to the Agreement or this DPA. For the avoidance of doubt, 3Rych does not sell Customer’s personal data or the personal data of end users.

Customer and 3Rych both acknowledge and understand that with respect to the processing of personal data of end-users (‘data subjects’), which Customer exports to 3Rych for the provision of the Services, 3Rych acts as a data processor.

1. Customer hereby instructs 3Rych to process data subjects’ personal data to the extent required for the performance of the Services under the Agreement.
2. 3Rych shall, in relation to any personal data which is processed in connection with the Services:

1. process personal data only on documented instructions of Customer, unless otherwise required by the laws of any member of the European Union or by the laws of the European Union applicable to 3Rych to process personal data;
2. only provide personnel with ‘need to know’ access to the personal data and ensure that all such personnel who have access to or process personal data are under a legal obligation to keep the personal data confidential;
3. take appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the level of risk presented by the processing (and having regard to the nature of the personal data) and to the harm which might result from a personal data breach affecting the personal data;
4. provide Customer with any assistance as reasonably requested by Customer in order to allow Customer to comply with obligations of Customer under the Data Protection Legislation, including the notification of personal data breaches, security of processing and assisting Customer with the performance of any relevant data protection impact assessment;
5. provide Customer with reasonable assistance in order to allow Customer to comply with its obligations to data subjects who exercise their rights under the Data Protection Legislation. 3Rych will make available technical and organizational measures to allow Customer to fulfil these obligations via the account of Customer. Customer hereby acknowledges and agrees that requests sent by Customer via email are not considered as a valid means to exercise its rights and that any such requests will not be processed by 3Rych. For the avoidance of doubt, Customer as the data controller is responsible for processing any request or complaint from data subjects with respect to the personal data of a data subject;
6. maintain records as required under the Data Protection Legislation of the processing activities carried out under the Agreement and this DPA;
7. be prohibited from retaining, using, or disclosing the personal data for any purpose other than as specified in the Agreement, as set out in this DPA, or as otherwise permitted by the Data Protection Legislation, unless 3Rych is required to do so due to a legal obligation, in which case it will act as a data controller;
8. not further collect, sell, or use personal data except as necessary for the fulfillment of the Agreement.
9. at least every two (2) years, audit the security and personal data processing activities of 3Rych, and a summary of an Information Security Management System ISO 27001:2013 audit report will be considered to fulfil the request of Customer. For the avoidance of doubt, the audit may either be an internal audit, or an audit performed by a third party, which decision shall, however, be in the sole discretion of 3Rych;
10. if the summary or description of the results of the audit provided by 3Rych to Customer, according to paragraph 2(j) of this DPA, gives Customer substantiated reasons to believe that 3Rych is in breach of its obligations under this DPA, related to the personal data provided by Customer, allow an independent and qualified third party appointed by Customer and approved by 3Rych, to audit the applicable personal data processing activities of 3Rych, provided that the terms under Clause 3 of this DPA are met; and,
11. notify Customer as soon as reasonably possible if 3Rych receives a notice or communication from a governmental or regulatory body which relates directly to the processing of personal data, as instructed and provided by Customer, by 3Rych or its (sub-)processors, unless notifying Customer of such notice or communication is prohibited by law.

1. Customer represents and warrants that it has provided notice to the End-User that the personal data is being used or shared in accordance with the terms and conditions envisaged in the PDPA. Customer is responsible for compliance with the requirements of the PDPA applicable to it as a data controller.
2. If Customer acts as a data controller, Customer guarantees that all processing activities are lawful, have a specific purpose, and any required notices and consents or otherwise appropriate legal basis are in place to enable lawful transfer of personal data. If Customer is a data processor (in which case 3Rych will act as a sub-processor, Customer ensures that the relevant data controller guarantees that the conditions listed in this clause are met.
3. Given the nature of the Services, the use of the Services by Customer and Customer’s End-Users may require the transfer of personal data outside the EEA; when the performance of the Services involves a transfer of personal data to sub-processors outside the EEA, Customer hereby gives 3Rych a mandate for the term of all agreements in place between Customer and 3Rych to enter into EU Model Contract Clauses with sub-processors outside the EEA on behalf of Customer, if no other appropriate transfer mechanisms under the Data Protection Legislation apply.
4. 3Rych will take all available and appropriate contractual measures to ensure that when a sub- processor is engaged:

1. the sub-processor will only process personal data if such processing is necessary for performance of the Services or a part thereof, and comply with the specific instructions stated in the Agreement, and;
2. data protection obligations providing similar protection as those in this DPA shall be imposed on the sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation.

1. 3Rych remains liable to Customer under this DPA for the performance of the data protection obligations of its sub-processor.
2. 3Rych hereby certifies that it understands all its contractual restrictions set out in the CCPA and will comply with them, to the extent applicable.
3. Details of the processing:

1. Subject matter and purpose of the processing: provision of the Services of 3Rych to Customer.
2. Categories of personal data: information on End-Users that Customer provides to 3Rych through the Services.
3. Categories of data subjects: data subjects can include customers of the Customer, employees, suppliers, and any other natural person who is the End-User of Services, from whom Customer provides personal data through the use of the Services.
4. Duration of the processing: personal data will be processed for as long as required for the performance of the Services, or as required under applicable law.

1. This Data Processing Annex is governed by the laws of Malaysia, and the Parties submit to the exclusive jurisdiction of Malaysian courts for all purposes connected with this DPA, including the enforcement of any award or judgement made under or in connection with it.