1.1. For the purpose of this CA, the terms defined in this Clause, and elsewhere in this CA, will have the following meanings:
(a) “Companies Act” means the Companies Act 2016;
(b) “Exchange” means the online platform which facilitates the exchange of products/services among MSMEs operated by Qu;
(c) “Extended Term” has the meaning as ascribed to it in Clause 4.2;
(d) “Force Majeure” means an act of God including but not limited to fire flood earthquake windstorm or other natural disaster; act of any sovereign including but not limited to war, invasion, act of foreign enemies, hostilities whether war be declared or not, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, nationalization, requisition, destruction, or damage to property by or under the order of government or public or local authority or imposition of government sanction embargo or similar action law judgment order decree, embargo, blockade;
(e) “Initial Term” has the meaning as ascribed to it in Clause 4.1;
(f) “Points” mean the points of credit received by a User in exchange for its pledging or sale of goods and/or services to or on the Exchange;
(g) “Qu” or “we” or “us” mean MSME New Media Sdn Bhd (Company No: 1126412-U);
(h) “User” means any person which uses the Exchange to transact goods and/or services;
(i) “Working Day” means a day (other than a Saturday, Sunday or public holiday) on which commercial banks are open for business in Kuala Lumpur; and
(j) “You” or “Your” mean the User entering into this CA with Qu.
2.1. If there is any inconsistency between the provisions of this CA and any agreement subsequently entered into between you and Qu, the CA shall prevail.
2.2. In this CA, any reference to any legal entity or individual person includes, where appropriate, a reference to its authorised agents, delegates, successors or nominees. Expressions in the singular form include the plural and vice versa.
2.3. No rule of law (or interpretation to the effect) that an ambiguity in a document is to be construed against the party drafting or preparing such document shall apply in respect of this CA.
2.4. Any reference to any law, statute or regulation or enactment shall include references to any statutory modification or re-enactment thereof, or to any regulation or order made under such law, statute or enactment (or under such a modification or re-enactment).
2.5. The headings used in this CA are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in, interpreting this CA.
3. PURPOSE AND ACCEPTANCE
By agreeing to this CA, you agree to be legally bound to supply your goods and services in exchange for Points (as defined below), and in return, shall be able to convert Points for cash in accordance with Clause 6 of this CA.
4. TERM AND OPTION
4.1. The term of this CA shall commence with effect from the date of this CA, and shall remain in effect unless terminated in accordance with the terms hereof.
5. USER’S OBLIGATIONS
5.1. You must promptly provide and supply such goods and/or services upon a request from a User for your goods and/or services (“Pledge”).
5.2. The obligations of you under this CA shall be in addition to the other terms and conditions which apply to all Users.
6. CONVERSION OF POINTS
6.1. You shall be entitled to convert your existing Points into cash via the Exchange in accordance to this Clause 6.
6.2. Upon the receipt of your request to convert all of, or any part of your existing Points (“Offered Points”), Qu shall deduct the Offered Points from your account and sell the said Offered Points to Users in the Exchange (“Qu Offer”). In the event that the said Qu Offer is accepted by a User (“Successful Conversion”), Qu shall immediately notify you of the Successful Conversion.
6.3. In the event that the Qu Offer is not accepted by any User within seven (7) days of the Qu Offer (“Failed Conversion”), Qu shall immediately inform you of the same and the Offered Points shall be transferred back to your account. For the avoidance of doubt, your request to convert your Offered Points is not guaranteed until a User agrees to purchase the Offered Points.
6.4. You shall be entitled to put in another request to convert your Offered Points after Qu has informed you of the Failed Conversion.
6.5. Notwithstanding anything to the contrary, you shall not be entitled to convert your existing Qu Points in the event that you have not completed any existing Pledge under the Exchange.
6.6. The Parties agree that you shall be able to convert from Qu the Points to cash at the rate of one (1) Point to one (1) Ringgit Malaysia. The payment to you shall be less 6% of the total sum payable to you as a marketing and promotional fee.
6.7. The cash owing to you as a result of a Successful Conversion shall be paid either by or on behalf of Qu to you within three (3) days from the date of the said Successful Conversion.
7. WARRANTIES AND UNDERTAKINGS OF QU
7.1. As a condition of this CA, Qu represents and warrants to and for the benefit of you as follows:
(a) that Qu has the power to enter into, execute and deliver this CA and that Qu has or will have obtained on or before each of the foregoing acts or events all necessary corporate and shareholders’ approvals and shall have taken all other actions therefore and in connection therewith so that the execution, issue or delivery as aforesaid shall constitute valid and legally binding obligations on Qu;
(b) that this CA:
(i) will constitute legal, valid and binding obligations of Qu in accordance with its respective terms and conditions;
(ii) are in accordance with the Constitution of Qu; and
(iii) do not and will not, infringe the terms of, or constitute a default under any trust deed, agreement or other instrument or obligation to which Qu is a party or by which it is bound, or any law to which it is subject to,
and the execution by Qu of this CA and the performance of the obligations to be assumed hereunder and thereunder, have been duly authorised by Qu so that upon due execution, the CA will constitute valid and legally binding obligations of Qu in accordance with its respective terms; and
that Qu is duly incorporated under the laws of Malaysia with full power and authority to conduct its business in each jurisdiction where it carries on business, is not in liquidation (whether voluntary or involuntary) and no steps have been taken by any person for or with a view to the appointment of a liquidator, receiver and/or manager or judicial manager of Qu or any of Qu’s assets or undertakings.
7.2. Upon any misrepresentation or breach of such warranties as are contained in this Clause 7, or any failure to perform the said undertakings in any material respect as contained in this Clause 5, coming to the notice of you, you shall be entitled (but not bound), without prejudice to any other right or remedy which it may have, by notice to Qu, to elect to treat such misrepresentation, breach or failure as releasing and discharging Qu from its respective obligations hereunder upon or following the occurrence of any such breach, shall not prejudice or nullify any right or claim for damages (including the right to payment of the expenses referred to in Clause 10) or any other remedy which Qu may have against Qu, for or arising from any such breach.
8. WARRANTIES AND UNDERTAKINGS OF THE USER
8.1. You represent and warrant to and for the benefit of Qu that:
(a) you have the power to enter into, execute and deliver this CA and to exercise your rights and perform and comply with all your obligations hereunder and that you have or will have obtained on or before each of the foregoing acts or events all necessary corporate and shareholders’ approvals and shall have taken all other actions therefore and in connection therewith so that the execution, issue or delivery as aforesaid shall constitute valid and legally binding obligations on Qu;
(b) you have the ability to perform your obligations under this CA, and has the power to enter into, exercise your rights and perform and comply with your obligations under this CA;
(c) all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) in order:
(i) to enable you to lawfully to enter into, exercise your rights and perform and comply with your obligations under this CA; and
(ii) to ensure that those obligations are legally binding and enforceable have been taken, fulfilled and done;
(d) your entry into, exercise of your rights and/or performance of or compliance with your obligations under this CA do not and will not violate:
(i) any law to which you are subject to;
(ii) the documents constituting you; or
(iii) any agreement to which a party or which is binding on you or your assets;
(e) your obligations under this CA are valid, binding and enforceable in accordance with your terms; and
(f) you are duly incorporated under the laws of Malaysia with full power and authority to conduct your business in each jurisdiction where it carries on business, is not in liquidation (whether voluntary or involuntary) and no steps have been taken by any person for or with a view to the appointment of a liquidator, receiver and/or manager or judicial manager of you or any of your assets or undertakings.
8.2. You undertake that you shall not make any transfers of any Points received in the course of performing your obligations in this CA to any other third party.
Without prejudice to the other rights and remedies of Qu, you undertake with Qu that you shall hold Qu fully and effectually indemnified and shall render Qu harmless from and against any losses, claims, damages or liabilities to which Qu may become subject to under any statute, at common law or otherwise, and shall pay Qu any legal fees (on solicitor and client basis) or other expenses (including the cost of any investigation and preparation) incurred by it in disputing or defending any claim or action or other proceeding in connection with any litigation, whether or not resulting in any liability, insofar as such losses, claims, damages, liabilities or litigation arising out of this CA or any omission or alleged omission to state therein a material fact required or necessary to be stated therein or to make the statements therein misleading or any misrepresentation or breach or alleged breach of any of the aforesaid representations, warranties or undertakings by you, and such indemnity shall extend to include re-imbursement of all costs, charges and expenses which Qu may reasonably pay or incur in disputing or defending any claim or action or other proceeding in respect of which indemnity may be sought against you.
10. COSTS AND EXPENSES
Qu shall pay all costs and expenses of or incidental to the underwriting of Points, including but not limited to the preparation and execution of this CA and the stamping thereof. For the avoidance of doubt, you shall be responsible for your own costs, including the costs of supplying goods and/or services under this CA.
11. EVENT OF DEFAULT AND TERMINATION
11.1. The following events will be events of default:
(a) breach by any Party of any of the warranties or if any of the warranties in Clause 7 and Clause 8 proves to be untrue, inaccurate or misleading in a material respect;
(b) breach by you of your obligations under Clause 5;
(c) any Party committing a breach of any obligations under this CA and failing to remedy such breach (if capable of remedy) within fifteen (15) days after being given notice by the other Party to do so;
(a) a petition is presented, a proceeding is commenced, an order is made or an effective resolution is passed for the winding-up, insolvency, judicial management, administration, reorganisation, reconstruction, dissolution or bankruptcy of any Party or for the appointment of a liquidator, receiver, judicial manager, administrator, trustee or similar officer of the party over all or any part of its business or assets; and/or
(d) any Party stops or suspends payments to its creditors generally, is unable or admits its inability to pay its debts as they fall due, seeks to enter into any composition or other arrangement with its creditors or is declared or becomes bankrupt or insolvent; or if a creditor takes possession of all or any part of the business or assets of the Party or any execution or other legal process is enforced against the business or any substantial asset of the Party and is not discharged within fourteen (14) days.
11.2. Without restricting any other rights available herein or at law, in the event of a default by any of the Parties as set out in Clause 11.1, (and, if capable of remedy, that is not remedied within fifteen (15) days after such occurrence), the non-defaulting Party may, at its sole discretion by notice in writing to the other Party terminate this CA and take action for any loss or damage suffered by it as a consequence of such default.
11.3. Notwithstanding Clause 11.1 above, Qu may at any time, without being obliged to assign any reason thereto, terminate this CA by giving thirty (30) days written notice to you. Any Points received before and within the aforementioned thirty (30) day period from the receipt of the written notice can be converted to cash.
Any notice to be given to any Party shall be given to the other Party at the email address or address as notified by the other Party (or such other email address or address as the addressee has by five (5) Working Days’ prior written notice specified to the sender). All such notices shall be delivered in person or sent by registered post or by email. Any notice so sent shall be deemed to have been duly given on the date of receipt if delivered in person, five (5) Working Days after being sent by registered post; or at the time the transmission report is received by the sender which purports to confirm that the addressee has received such email if sent by email.
13.1. Time shall be of the essence of this CA.
13.2. This CA shall, together with all documents referred to herein, constitute the whole agreement between the Parties and supersedes any prior agreement or understanding on the subject matter hereof. No variation hereof shall be effective unless agreed upon by both Parties and made in writing.
13.3. This CA shall be binding upon and enure for the benefit of the respective successors-in-title of the respective Parties. Qu may, with prior written notice, assign any of its respective rights and/or obligations under this CA without the prior written consent of Qu. Qu shall not assign any of its rights and/or obligations under this CA without the prior written consent of Qu.
13.4. The rights and remedies provided in this CA are cumulative, and are not exclusive of any rights or remedies of the Parties provided at law, and any failure by a Party, to exercise or any delay in exercising any rights under this CA shall not operate as a waiver or variation of that or any other such rights; any defective or partial exercise of any of such rights shall not preclude any other or further exercise of that or any other such right; and no act or course of conduct or negotiation on its part or on its behalf shall in any way preclude it from exercising any such right or constitute a suspension or any variation of any such right.
13.5. If any of the provisions of this CA becomes illegal, invalid or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired, and the Parties shall use their respective best endeavors to negotiate and agree a substitute provision which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable provision.
13.6. Nothing contained herein shall be deemed or construed by the Parties hereto nor by any third party as creating the relationship or partnership or principal and agent or of joint venture between the Parties.
13.7. Knowledge or acquiescence by any Party of the breach of any of the covenants, undertakings, warranties or representations herein contained shall not operate as or be deemed to be a waiver of such covenants, undertakings, warranties, representations or any of them and notwithstanding such knowledge or acquiescence, the Parties shall be entitled to exercise its respective rights under this CA and to require strict performance by the other Party of the terms and conditions herein.
13.8. The obligations created by this CA shall continue to be valid and binding for all intents and purposes notwithstanding any merger, acquisition, reconstruction, amalgamation or otherwise which may be made in the Parties whether or not such action results in any change of name or constitution of the Parties.
13.9. The representations, warranties, agreements, undertakings and indemnities herein shall continue to be in full force and effect notwithstanding completion of the arrangements for the underwriting as per this CA.
14. GOVERNING LAW AND JURISDICTION
14.1. This CA shall be governed by, and construed in accordance with, the laws of Malaysia.
14.2. In relation to any legal action or proceedings arising out of or in connection with this CA, the Parties submit to the exclusive jurisdiction of the courts of Malaysia.