1. Definitions

1.1

“Agreement” means these Terms and Conditions together with the terms of any services proposal and cost specification documents;

1.2

“Customer” means the organisation or person who purchases services from Marslab Solution;

1.3

“Intellectual Property Rights” means all copyright and other intellectual property rights, howsoever arising and in whatever media, whether or not registered, including (without limitation) patents, trademarks, service marks, trade names, registered design and any website and applications for the protection or registration of these rights and all renewals and extensions thereof throughout the world;

1.4

“Specification” means all or any of the following documents: development proposal, cost specification documents, statement of work, quotation or other similar documents supplied to the Customer describing the services to be provided by Marslab Solution;

1.5

“Acceptance Date” means the date on which the Software is accepted by the Customer;

1.6

“Acceptance Tests: means the tests specified in the Specification and/or such other tests as may be agreed in writing between the Customer and Marslab Solution for the purposes of confirming that the Software operates according to the functional requirements in the Specification;

1.7

“Additional Services” means any additional services requested by the Customer to be provided by Marslab Solution as set out in the Specification;

1.8

“Change Request” means a documented request for a change to the Specification or Software or Project Plan or other of the Deliverables made by the Customer or by Marslab Solution;

1.9

“Confidential Information” shall include, but not necessarily be limited to, all information which is not publicly known regarding the business, finances, technology, trade secrets, and any other commercially sensitive information of either party regardless of its nature;

1.10

“Deliverables” means the software, documentation and services to be delivered by Marslab Solution to the Customer in fulfilment of this Agreement as set out in the Specification.

1.11

“Project Plan” means the timing and sequence of events agreed between the Customer and Marslab Solution for the performance of this Agreement, as set out in the Specification;

1.12

“Payment Schedule” means the schedule of payments set out in the Specification;

1.13

“Planned Acceptance Date” means the date specified in the Project Plan on which the Software or Website is intended to be accepted by the Customer in accordance with this Agreement;

1.14

“Price” means the fixed aggregate price for the provision of the Deliverables as set out in the Specification;

1.15

“Project” means the software development, delivery and testing of the Software and the other Deliverables;

1.16

“Software” means the source programs, compiled object code of the software, scripts and installation programs being developed or customised by Marslab Solution for the Customer, as set out in the Specification, including any enhancements and modifications made;

1.17

“Specified Equipment” means the configuration of computer or computers, including operating systems, on which the Software is to function as specified in the Specification;

1.18

“Standard Working Hours” means the hours of 9.00 am to 6.00 pm Malaysia time Monday through to Friday excluding Public Holidays.

1.20

“System” means collectively the Specified Equipment and the Software;

2. General

2.1

These Terms and Conditions shall apply to all contracts for the supply of services by Marslab Solution to the Customer.

2.2

Before the commencement of the services, Marslab Solution shall submit to the Customer a Development Proposal and Cost Specification Documents which shall specify the services to be performed and the fees payable. The Customer shall notify Marslab Solution immediately if the Customer does not agree with the contents of the Development Proposal and Cost Specification Documents. All Development Proposal and Cost Specification Documents shall be subject to these Terms and Conditions.

2.3

Marslab Solution shall use all reasonable endeavours to complete the services within estimated time frames but time shall not be of the essence in the performance of any services.

3. The Project

3.1

Marslab Solution shall provide the Customer with software development services for the purpose of creating the Software and other Deliverables as detailed in the Specification, in accordance with the terms and conditions of this Agreement.

3.2

Marslab Solution shall provide to the Customer the Deliverables when requested by the Customer subject to full payment having been received by Marslab Solution for the Deliverables or part of the Deliverables being provided.

3.3

Unless explicitly itemised in the Specification Marslab Solution shall not be responsible for any other services including without limitation hardware and software installation, systems integration, data conversion, data import and training.

3.4

For the avoidance of doubt, Marslab Solution shall not be responsible under any circumstances for backup and archiving of the Software or of any data used by the Software on computer equipment belonging to the Customer or the Customer’s appointed computer hosting supplier.

4. The Customer’s Obligations

4.1

The Customer shall:

• • 4.1.1
  • Make available to Marslab Solution, free of charge, such computer facilities and resources, (including but not limited to unhindered access to the Specified Equipment including remotely for access at Marslab Solution’s premises), power and computer consumables and office and administrative resources as are reasonably necessary to enable Marslab Solution to carry out its obligations under this Agreement;
  • 4.1.2
  • Make available suitably qualified employees as may be required for Marslab Solution to carry out its obligations under this Agreement and ensure that its employees and other independent contractors co-operate reasonably with Marslab Solution and its employees in carrying out the Project;
  • 4.1.3
  • Promptly furnish Marslab Solution with such information and documents as it may reasonably request for the proper performance of its obligations under this Agreement;
  • 4.1.4
  • Ensure that its representative is available as reasonably required by Marslab Solution; and
  • 4.1.5
  • Use best endeavours to co-operate with and assist Marslab Solution to such extent as Marslab Solution may reasonably require to perform Marslab Solution obligations under this Agreement.

4.2

Marslab Solution reserves the right to initiate a Change Request if the project is delayed by the failure of the Customer to carry out its obligations under this Agreement or if the project is delayed by the acts or omissions of an employee, agent or third party supplier of the Customer or if the project is delayed by circumstances beyond the reasonable control of Marslab Solution.

4.3

It is hereby acknowledged that by legal precedent computer software inherently contains from time to time defects, faults and difficulties however well developed and supported and acceptance of Deliverables under this Agreement shall not be unreasonably withheld due to minor faults in the Software.

4.4

The Customer acknowledges that all and any Deliverables from Marslab Solution to the Customer or from a third party contracted by Marslab Solution in respect of this Agreement are of Marslab Solution importance to Marslab Solution meet the agreed schedule in the Project Plan and accepts full responsibility for any delay in accepting the Deliverables.

5. Change Control

5.1

If either party identifies a requirement for a change to the Specification or to the Software or Project Plan, a Change Request shall be sent to the other party detailing the change requirements. If sent by Marslab Solution, the Change Request shall state the effect such a change shall have on the Specification, the Project Plan and the Price. If sent by the Customer, the receipt of the Change Request by Marslab Solution shall constitute a request to Marslab Solution to state in writing the effect such a change shall have on the Specification, the Project Plan and the Price. Marslab Solution shall use all reasonable endeavours to supply the necessary details within ten working days from receipt of the Change Request or such other period as may be agreed.

5.2

Where a change to the Price is required, the rates used as the basis for the additional cost for the Change Request shall be the Rates as detailed in the Specification. The parties shall then decide whether or not to implement the change.

5.3

If Marslab Solution in its sole discretion deems that more than one working hour is required to investigate and estimate a Change Request initiated by the Customer then Marslab Solution reserves the right to produce a quotation for the investigation work for the Customer’s approval before commencing investigation work.

5.4

Marslab Solution shall not implement any changes to the Software specified in a Change Request unless the Change Request has been agreed by both of the Parties in writing or via Marslab Solution electronic change management system.

5.5

If a Change Request is agreed in writing by both Parties, the change shall then be deemed to form part of the Specification, Software, Project Plan and Price for the purpose of the meaning of these terms in the Agreement.

6. Acceptance Tests

6.1

It shall be the sole responsibility of the Customer to execute the Acceptance Tests.

6.2

The Customer shall accept the Software immediately after the Software has passed the Acceptance Tests and shall sign Marslab Solution’s Acceptance Certificate without delay.

6.3

If the Software fails to pass the Acceptance Tests, repeat tests shall be carried out without delay following the release of corrected Software by Marslab Solution until the Software passes the Acceptance Tests.

6.4

If at any time the Customer or any of its appointed agents, contractors or customers under its authority shall commence Live Operational Use of the whole or any part of the Software then the Customer shall be deemed to have accepted the Software in its entirety.

6.5

If at any time the Customer shall distribute all or any part of the Software for commercial use by any of its staff, appointed agents, contractors or customers then the Customer shall be deemed to have accepted the Software in its entirety.

6.6

If following one month after the delivery of the Software, there are no unresolved fault reports logged by the Customer with Marslab Solution that evidence that the software does not pass the Acceptance Tests then the Customer shall be deemed to have accepted the Software in its entirety.

6.7

It shall be the responsibility of the Customer to create suitable Acceptance Test scripts that accurately reflect the Specification and to provide suitable data for the Acceptance Tests. The scripts and data must be made available to Marslab Solution not less than one month prior to the expected commencement date of Acceptance Tests according to the Project Plan.

7. Representatives and Progress Meetings

7.1

Each party shall nominate in writing upon the signing of this Agreement, the person who shall act as its representative for the purposes of this Agreement and who shall be responsible for providing any information which may be required by the other party to perform its obligations under this Agreement.

7.2

The parties shall procure that their respective representatives shall meet by physical meeting or conference telephone call, as agreed, at least once a month (or as otherwise may be agreed) between the date of this Agreement and the Planned Acceptance Date to discuss and minute the progress of the Project.

7.3

The representative of Marslab Solution shall maintain a log of issues, risks and actions that affect the project. The representative of the Customer shall exercise due diligence in co-operatively assisting the representative of Marslab Solution to mitigate risks, resolve issues and complete actions in a timely fashion.

8. Support

8.1

On payment of the Annual Support Fee, Marslab Solution shall provide the Customer with the following support commencing on the Support Commencement Date for one year and renewable thereafter:

• • 8.1.1
  • Error Corrections: correction of critical errors or assistance to overcome specific software problems. Marslab Solution may, in its sole discretion, correct errors by providing a patch or by releasing a new version of the software.

8.2

The Customer shall supply in writing to Marslab Solution a detailed description of any fault requiring support and the circumstances in which it arose, and shall submit sufficient material and information as requested by Marslab Solution including screenshots and log files to enable Marslab Solution’s support staff to duplicate the problem and shall allow Marslab Solution sufficient access to the Customer’s systems to enable diagnosis of the fault.

8.3

The response period as indicated by “Response Time” in 8.4 shall commence when all material and information related to the fault requested by Marslab Solution has been provided to Marslab Solution.

8.4

Marslab Solution shall use reasonable commercial efforts to communicate with the Customer, by telephone, e-mail within the following targeted response times, regarding faults that the Customer reports to Marslab Solution during the specified support hours below; for this Agreement, a “response” means Marslab Solution’s acknowledgement of a fault and does not necessarily mean that a resolution will be achieved.

8.5

Marslab Solution shall respond to calls and progress calls during Standard Working Hours.

8.6

All support shall be provided by electronic or other communication methods. Marslab Solution shall not provide on-site support under this Agreement.

8.7

Marslab Solution shall be under no obligation to provide support in respect of:

• • 8.7.1
  • problems resulting from any modifications or customisation of the Software not authorised in writing by Marslab Solution. For the avoidance of doubt, modifications to the software shall include but not be limited to changes to the logical or physical database schema of the software, changes to the computer hardware configuration, and hand-modified changes to the data within the database;
  • 8.7.2
  • any software other than the Software;
  • 8.7.3
  • incorrect or unauthorised use of the Software or Misuse of the Software or operator error;
  • 8.7.4
  • any fault in the Specified Equipment or any other computer or network hardware;
  • 8.7.5
  • any programs or software used in conjunction with the Software which has not been supplied by Marslab Solution ;
  • 8.7.6
  • use of the elements of the Software in any combination other than those specified in any operating instructions supplied by Marslab Solution ;
  • 8.7.7
  • use of the Software with computer hardware, operating systems or other supporting software other than the Specified Equipment;

8.8

Any time spent by Marslab Solution investigating any fault pursuant to the circumstances described in clause 8.7 shall be chargeable at Marslab Solution’s then-current rates. Marslab Solution shall invoice such charges at its discretion and such shall be paid within 30 days of the date of said invoice.

8.9

Marslab Solution reserves the right to discontinue the Support and Maintenance for any prior version of the Software if a superseding version has been available to the Customer.

8.10

Marslab Solution shall not be obliged to make modifications or provide Support in relation to the Customer’s computer hardware, operating system software, third party software or any data feeds or external data.

8.11

The Customer shall:

• • 8.11.1
  • operate the Software, maintain data and the database in accordance with all instructions issued by Marslab Solution ;
  • 8.11.2
  • by arrangement, grant access to premises and/or systems at all times for support;
  • 8.11.3
  • make hardware accessible to Marslab Solution’s support staff and, when required, enable logins or passwords with suitable access permissions required for such support staff;
  • 8.11.4
  • permit Marslab Solution to install the current version of the Software from time to time when upgrades or fixes occur;
  • 8.11.5
  • provide notice of intention to change hardware or operating system or data-feeds. If any of these changes have a major effect on the Software then Marslab Solution reserves the right to increase its charges.

8.12

The Customer shall pay to Marslab Solution the Annual Support Fee on or before the Support Commencement Date. No support services shall be provided before the Annual Support Fee has been paid in full.

8.13

The Customer shall renew the support annually by paying the Annual Support Fee to Marslab Solution on or before the anniversary of the Support Commencement Date unless 90 days’ notice in writing is provided to Marslab Solution to cancel the renewal of the service.

8.14

The support service may be cancelled at any time during the supported year but no refund of the Annual Support Fee or part thereof shall be payable to the Customer.

8.15

Marslab Solution may increase the Annual Support Fee for any annual renewal of the support by providing not less than 120 days notice in writing to the Customer before the anniversary of support renewal.

9. Warranties

9.1

Marslab Solution warrants that the Software shall perform substantially in accordance with the Specification on the Specified Equipment, minor interruptions and errors excluded;

9.2

Marslab Solution shall not be liable under clause 9.1if a failure to meet the warranties set out in it is caused by:

1. 1. computer equipment or computer software, other than the Software delivered by Marslab Solution; or
   2. modifications or customisation made by or on behalf of the Customer to the Software, without the authorisation of Marslab Solution; or
   3. Misuse use of the Software; or
   4. Force Majeure.

9.3

If Marslab Solution receives written notice from the Customer identifying a breach of the warranties set out in clause 9.1, or otherwise becomes aware of its failure to comply with the warranties set out in clause 9.1, then Marslab Solution shall, at its own expense, promptly remedy such breach or failure provided that Marslab Solution shall have no liability or obligations under the warranties unless it shall have received written notice of the defect or error within the Warranty Period.

10. Licence and Ownership

10.1

Except where otherwise agreed and on payment in full of the Price, Marslab Solution assigns to the Customer ownership of the Intellectual Property Rights in the Software.

11. Proprietary Rights

11.1

Marslab Solution shall indemnify the Customer on demand against all costs, claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim that the use or possession of the Software infringes the Intellectual Property Rights of any third party subject to such infringement having been deliberately and consciously entered into on the part of Marslab Solution.

1. 1. The Customer shall promptly notify Marslab Solution in writing of any allegations of infringement of which it is aware and shall not make any admissions without Marslab Solution’s prior written consent;
   2. The Customer, at Marslab Solution’s request and expense, shall allow Marslab Solution to conduct and/or settle all negotiations and litigation resulting from any such claim subject to Marslab Solution taking over such conduct within 10 working days after being notified of the claim and provided that Marslab Solution  diligently pursues the settlement of any such claim; and
   3. The Customer shall, at the request of Marslab Solution, afford all reasonable assistance with such negotiations or litigation, and shall be reimbursed by Marslab Solution on demand for all expenses properly incurred in doing so.

12. Charges and Expenses

12.1

In consideration of Marslab Solution carrying out the Project, the Customer shall pay to Marslab Solution the Price which shall be invoiced to the Customer in the specified proportions set out in the Specification and subject to the terms set out in clause 13.

12.2

In consideration of any Additional Services, the Customer shall pay to Marslab Solution the amounts invoiced by Marslab Solution to the Customer using the Rates set out in the Specification.

13. Terms of Payment

13.1

Payment of sums due by the Customer to Marslab Solution shall be made within 30 days of the receipt of an invoice from Marslab Solution. All payments under this Agreement shall be made in Ringgit Malaysia unless otherwise agreed in writing between the Parties.

13.2

With effect from the beginning of each year commencing on the Acceptance Date, Marslab Solution may, at its sole discretion, increase the rates in effect during the previous year.

13.3

Without prejudice to any other right reserved by Marslab Solution in this Agreement, if any sum payable under this Agreement is in arrears for more than fourteen (14) days from the due date of payment then Marslab Solution shall be entitled to charge interest on a day-to-day basis on any such arrears as from the invoice date at the rate permitted from time to time under the provisions of the Late Payment.

14. Termination

14.1

This Agreement shall continue until completion of the Project unless either party gives to the other not less than 90 days’ prior written notice of termination or unless the Agreement is terminated in accordance with any of the provisions of this clause 14 or any other clause of this Agreement.

14.2

1. 1. Either party shall be entitled to terminate this Agreement forthwith at any time by written notice to the other party if: the other party commits a breach of any of the terms of this Agreement (and if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing to do so; or
   2. the other party becomes subject to an administration order; a receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of any of the other party’s property or assets; the other party enters into any arrangement or composition with its creditors, ceases or threatens to cease to carry on business, becomes insolvent, or ceases to be able to pay its debts as they fall due.

14.3

Forthwith upon the termination of this Agreement, Marslab Solution shall return to the Customer any materials and documentation and any Confidential Information belonging to the Customer and all copies of the whole or any part thereof or, if requested by the Customer, shall destroy the same and certify in writing to the Customer that it has been destroyed.

14.4

Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

14.5

In the event of termination of this Agreement, Marslab Solution shall compute a project completion percentage by comparing completed tasks with tasks on the project plan. The Customer shall then pay to Marslab Solution the same percentage of the Price. Marslab Solution shall evidence completed tasks to the Customer by demonstrating working functionality or source code.

15. Confidentiality

15.1

Both during this Agreement and after its termination, the parties shall treat as confidential (and shall procure that its personnel and each of them treat as confidential) and shall not (and shall procure that their personnel and each of them does not) other than in the proper provision of the services required to fulfil the Project, use or disclose to any person, firm or company, any Confidential Information belonging to the other party or its Customers, suppliers or customers, nor permit its use or disclosure.

15.2

1. 1. The provisions of clause 15.1 shall not apply where Confidential Information is divulged to either party’s own employees and then only to those employees who need to know the same;
   2. either party’s auditors, an officer of Customs and Excise, a court of competent jurisdiction, governmental body or applicable regulatory authority and any other persons or bodies having a right, duty or obligation to know the business of the other party and then only in pursuance of such right, duty or obligation.

15.3

Both parties undertake to ensure that persons and bodies referred to in clause 15.2 are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other party.

15.4

Each party to this Agreement shall promptly notify the other party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other party all reasonable assistance in connection with any proceedings which the other party may institute against such person for breach of confidence.

15.5

The provisions of this clause shall survive the termination of this Agreement but the restrictions contained in clause 15.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure.

15.6

Nothing in this clause 16 shall prevent Marslab Solution from exploiting any inventions or software that it develops during the term of this Agreement.

16. Data Protection

16.1

It is the sole responsibility of the Customer to ensure that the Software is not used in any way that infringes data protection legislation at the time being. For the avoidance of doubt, Marslab Solution accepts no responsibility whatsoever for any such infringement or alleged infringement.

17. Agency, Partnership

17.1

This Agreement shall not establish the relationship of master and servant as between the Customer and Marslab Solution or its personnel. The Customer shall not be entitled to require Marslab Solution or its personnel to carry out any work other than as provided for by this Agreement.

18. Amendments

This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by a duly authorised officer or representative of each of the parties.

19. Assignment

19.1

This Agreement is personal to the parties, neither this Agreement nor any rights, licences or obligations under it may be assigned by either party without the prior written approval of the other party.

20. Entire Agreement

This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However, the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

21. Notices 

21.1

All notices under this Agreement shall be in writing.

21.2

Notices shall be deemed to have been duly given:

1. 1. when delivered, if delivered by courier or other messengers (including registered mail) during normal business hours of the recipient;

22. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

23. Waiver

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

24. Counterparts

This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.

25. Time of the Essence

Time shall be of the essence in this Agreement as regards any time, date or period mentioned in this agreement or subsequently substituted as a time, date or period by agreement in writing between the parties.

26. Sub-Contracting

With the prior written consent of the Customer (such consent not to be unreasonably withheld or delayed) Marslab Solution may perform any or all of its obligations under this Agreement by the use of agents or sub-contractors, provided that Marslab Solution shall remain liable for such performance and shall indemnify the Customer against any loss or damage suffered by the Customer arising from any act or omission of such agents or sub-contractors.

27. Language

This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.

28. Costs and Expenses

Each party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.

29. Set-Off

Where either party has incurred any liability to the other party, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, each party may set off the amount of such liability against any sum that would otherwise be due to the other party under this Agreement.

30. Dispute Resolution

31.1

For the purpose of clause 34, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing (not including e-mail) stating the nature of the dispute.

31.2

Any dispute which may arise between the parties concerning this Agreement shall be determined as follows.

31.3

Within seven days the representatives of the Parties shall meet to attempt to settle the dispute by mutual agreement.

31.4

If the representatives fail to reach a mutual agreement a director or partner of each of the Parties shall meet within the following seven days to attempt to settle the dispute by mutual agreement.

31.5

In any other case if the dispute remains unresolved the dispute shall be determined by the High Court of Justice in Malaysia and the Parties submit to the exclusive jurisdiction of that Court for such purpose.