MERCHANT TERMS AND CONDITIONS
These Merchant Terms and Conditions were last updated on 25th December 2020.
Thank you for becoming a VIVIFY Merchant!
VIVIFY looks forward to working together with you and helping you connect with a wider market, including VIVIFY’s consumers (“User”). As part of VIVIFY’s commitment to its Merchants, you will enjoy training, exposure to VIVIFY’s communication collaterals, insight sharing on VIVIFY’s User trends, thematic campaigns by VIVIFY to drive User onboarding, and use and integration with our point-of-sale materials (“POSM”) that will be provided free of charge.
By continuing on this website or the VIVIFY mobile application, you agree to be bound by these Merchant Terms and Conditions and you are encouraged to read these very carefully.
1. ACCEPTANCE OF MERCHANT TERMS AND CONDITIONS
Melaka Privilege Sdn Bhd. (“VIVIFY”, “we” or “us” or “ our ”) owns and operates the website, www.vivify.com.my, the mobile and touch versions and any sites we have now or in the future that reference these Merchant Terms and Conditions (collectively, “Site”), the VIVIFY mobile application (“User App”), the VIVIFY Collaborator mobile application (“Collaborator App”), the VIVIFY privilege card (“Card”), the ““,““,““,“” trademarks (collectively, “VIVIFY Trademarks”) and all content contained in or published on our social media accounts. The Site, the Collaborator App, the Merchant Application Form, the Card, and/or any related or ancillary services shall be collectively referred to as the “Merchant Services”.
These Merchant Terms and Conditions supplement and are in addition to the General Terms or Specific Terms to which you agree to be bound in the Merchant Application Form. Where there is a conflict between the General Terms or Specific Terms and these Merchant Terms and Conditions, these Merchant Terms and Conditions shall prevail to the extent of such conflict.
THE MERCHANT AGREEMENT A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND VIVIFY. PLEASE READ IT CAREFULLY.
The term “use” and its derivatives also include any person or entity that accesses or uses Merchant Services and/or any related or ancillary services with crawlers, robots, data mining, or extraction tools, or any other functionality.
These Merchant Terms and Conditions shall commence on the Commencement Date as stipulated on the Merchant Application Form and continue to be in full force and effect as stated on the Merchant Application Form unless otherwise earlier terminated by these Merchant Terms and Conditions.
2. MERCHANT OFFERINGS
The Merchant Services is a platform through which users may use VIVIFY’s credit system to redeem VIVIFY event packs and offer vouchers that can be exchanged for certain benefits with you. Unless expressly stated otherwise, VIVIFY is not an agent, in a partnership, or a joint venture with you or any Merchant. Through the Collaborator App, the Merchant may reach a wider market by offering exclusive deals and benefits to VIVIFY’s paying Users.
Merchants may offer, without limitation:
(a) discounts on goods and services;
(b) special prices on goods and services;
(c) gifts, prizes, and free offers; and
(d) loyalty or repeat purchase vouchers,
collectively, “Merchant Offerings”.
Merchants are the sellers and issuers of the Merchant Offerings and are solely responsible to our Users for the care, quality, and delivery of the goods and services provided. Merchants are also solely responsible to ensure that the Merchant Offerings remain available for an exchange for so long as that Merchant is a participating merchant.
You shall ensure that there is no limitation in the quantity or the amount of Merchant Offerings that can be purchased with tokens through the VIVIFY Pass.
For so long as you remain a Merchant, you will not revoke any Merchant Offerings made available on the User App without our prior consent in writing.
Users will be able to utilize the chat platform on the User App to communicate with Merchants for inquiries related to the Merchant Offerings, outlets, products and services, amenities, address, operating hours, and contact details. Merchants shall respond promptly and accurately to any User inquiries made through the User App. You must ensure that your essential details are available and up-to-date, and VIVIFY shall not be responsible for any mistakes, errors, or omissions regarding the details of the Merchants and/or the Merchant Offerings.
3. ONBOARDING AND CATEGORY OF MERCHANTS
You will be onboarded as either:
depending on the selected category as contained in the Merchant Application Form. The approval of Merchants is at our sole and absolute discretion.
VIVIFY may provide on loan and install the necessary equipment, tools, and devices (“VIVIFY Hardware”) to enable the Merchant to carry out transactions as contemplated in these Merchant Terms and Conditions. The ownership and title to the said VIVIFY Hardware shall at all times remain with VIVIFY. The Merchant shall only use the VIVIFY Hardware to carry out the transaction and for no other purposes. If the VIVIFY Hardware, the Merchant shall ensure that VIVIFY has reasonable access to the same, including but not limited to the right of VIVIFY to enter into any of the premises of the Merchant where the VIVIFY Hardware are placed to provide installation, maintenance service, repairs, upgrades and/or where necessary, remove and replace the VIVIFY Hardware ensure the physical security of the equipment and devices loaned to the Merchant, report any damage, lost and/or theft of VIVIFY Hardware to VIVIFY and in case of loss or theft thereof, the Merchant shall co-operate and assist in making a report with the police and shall repay/compensate VIVIFY for such damage, loss or theft based on the market rate when such VIVIFY Hardware is provided to the Merchant or at a price that is acceptable to VIVIFY and ensure compliance with all relevant laws set by the government and/or local authorities with respect of the use of the VIVIFY Hardware.
Merchant shall not under any circumstance give away, loan, sell, pledge, mortgage and/or in any way dispose the VIVIFY Hardware, nor affix, paint or otherwise exhibit on the exterior of the VIVIFY Hardware or any part thereof, any stickers, nameplates, marks, signboards, placard, posters and/or advertisement or anything whatsoever without the prior written consent of VIVIFY, nor tamper, modify and/or alter the VIVIFY Hardware (including the software and firmware therein) without the prior written consent of VIVIFY; and shall not do or permit or suffer to be done anything to the VIVIFY Hardware which would invalidate the policy of any insurance on the VIVFY Hardware or increase the premium for such insurance beyond the existing risk. In this respect, the Merchant shall fully indemnify VIVIFY against all liabilities, losses, damages, costs, and/or expenses suffered or incurred by VIVIFY arising from or in connection with the Merchant’s failure to comply with any of the obligations set out herein howsoever related to VIVIFY Hardware.
All Merchant Partners receive the same benefits and advantages as Merchant Allies. Merchant Partners are entitled to additional benefits and advantages as described in Section 10.
All Merchants must be onboarded by:
(1) Filling the Merchant Application Form and duly submitting it to VIVIFY for processing, verification, and approval;
(2) Downloading the Collaborator App; and
(3) Setting up an Account.
Upon successful onboarding, you will be confirmed as a Merchant on the User App and the User will be able to view the exclusive deals and benefits offered by you on the User App.
You must commit to being a VIVIFY Merchant or such other period as may be specified in the Merchant Application Form. The set-up fee for your participation is as stated on the Merchant Application Form.
You must ensure that the Merchant Offerings to be offered on the User App cannot be obtained through any other platform, including your own platform.
You must also ensure that upon successful onboarding, you will comply with VIVIFY’s point-of-sales requirements, including the proper display of all digital and printed POSM, which will be provided to Merchants free of charge. These include standees, flyers, posters, unique quick response codes (“QR Code”), and stickers, if and when provided by VIVIFY.
You must ensure that as a Merchant, you must have a compatible smartphone with an Internet connection and/or a compatible point-of-sale terminal that can scan and process Users’ voucher codes during the transaction.
You are also reminded that while we exercise control and responsibility for the User App as a whole, it is your responsibility to provide our representative with the necessary details and content to create your Merchant profile on the User App. These may include Merchant Offerings, outlets, products and services, amenities, address, operating hours, and contact details.
4. CREDIT SYSTEM
Users may redeem Merchant Offerings using the VIVIFY credit system (“Credit System”).
To use the Credit System, Users must first sign up via the User App and obtain VIVIFY tokens (“Tokens”). Users may earn Tokens by purchasing a Pass which will entitle them to further Tokens and/or a Card.
Tokens may be exchanged for Merchant Offerings in the form of a voucher (“Voucher”).
A Merchant earns Token when a VIVER successfully redeems a Voucher at a Merchant’s outlet, upon successful referral with a qualifying Account registration when the Merchant is a referee of the Referral Programme only; or concerning promotional and incentive programs, subject always to VIVIFY’s right to offer to only specified groups of Merchants as part of any promotional and incentive programs. All Tokens earned and accumulated by a Merchant will be automatically recorded in Merchant’s Account and can be managed via Merchant’s Collaborator App.
Tokens earned and accumulated by Merchants are not exchangeable for cash. However, Tokens may be utilized in exchange for advertising space on VIVIFY Services (Merchant Adverts) via Merchant’s Collaborator App. Merchants acknowledge that Advertising Space Value is not fixed and may be varied from time to time depending on the traffic on respective platforms on VIVIFY’s Services and as determined by VIVIFY, and may include social media pages, and Website advertising (banners and interstitial advertisements).
Unused Token is valid throughout the Contract Period. The unused Token after the Contract Period will automatically expire, be forfeited, and deducted from the Token balance in a Merchant’s Account if Merchant doesn’t renew its Term with VIVIFY before the termination or expiration of such then-current Term.
Users may scan a Merchant’s QR Code at the Merchant’s premises and select the type of Voucher and the number of Vouchers to be exchanged for the Tokens. After confirming the selection, the Voucher(s) is considered redeemed and the Token will be deducted from the User App or Card and transferred to the Merchant’s Account.
Merchant is to always display Merchant’s QR code at Point-of-Sale (“POS”) or during check-out for VIVERs to scan to proceed with Voucher redemption. Redemption vehicle for VIVERs is either via VIVER’s User App or Card. VIVERs initiate redemption by scanning the Merchant’s QR code using the scan feature on VIVER’s User App. If the VIVER is a Cardholder, the Merchant is to initiate the redemption process by scanning the QR Code on the Card using the scan feature on the Collaborator App.
Where a Voucher is made available to VIVERs, the Merchant warrants and undertakes to honor and comply with the terms and conditions of the Voucher and to indemnify VIVIFY in full for any claims howsoever arising out of a VIVERs loss or damage as a result of any Voucher redemption (including Coupon Stamping).
Additionally, when applicable for Vouchers with free offers or cash vouchers, if the purchase of Merchant’s good(s) or service(s) exceeds the Voucher or cash voucher face value, the Merchant is to collect payment for the difference from the VIVER, and VIVIFY shall have no responsibility to the Merchant for any difference or shortfall.
A Merchant may choose to operate on a no refund policy for their qualifying Merchant Offering. A VIVER who has redeemed Vouchers with the use of relevant Tokens for such goods or services from Merchant may not be eligible for any refund or reinstatement of Tokens, as the case may be.
Where a Merchant requests a VIVER to place a deposit (for example, upon check-in concerning a hotel accommodation Voucher), the incidental charges, if any, will be borne by the VIVER and will be deducted from such deposit. The remaining deposit is refundable to VIVER.
The only redemption of Voucher via User App and Card will be accepted. Merchant will not accept printed Voucher. VIVIFY reserves the right to decline redemptions of Vouchers made through any other channels. Merchant acknowledges that VIVIFY makes no representation or warranty concerning any goods or services that come with the Merchant Offering(s). In particular, VIVIFY gives no warranty concerning the quality of the goods or services of a Merchant or their suitability for any purpose.
The Merchant’s own terms and conditions (which include reservation requirements, cancellation restrictions, warranties, and limitations) may also apply.
The User Terms and Conditions specify that the issuance of dining, travel, or hotel accommodation voucher does not constitute a reservation. The entitled VIVER is responsible for notifying and making all reservations. VIVIFY does not accept any liability whatsoever (including liability for negligence) in connection with any Merchant’s refusal to accept Voucher to redeem Merchant Offerings. Any disputes arising from a VIVER’s failure to redeem a Voucher, or any dissatisfaction or injury relating to a Merchant’s goods or services are solely between the VIVERs and Merchants. However, Merchant acknowledges VIVER may complain about VIVER’s User App or by email to firstname.lastname@example.org or by writing to Melaka Privilege Sdn. Bhd. No. 31-2, Jalan AKP 1, Taman Ayer Keroh Permai, 75450 Melaka, Malaysia. In such a complaint, VIVIFY may contact the Merchant for additional or supporting details, documents, or other evidence to investigate such a complaint (“Collaborator Escalation”) and the Merchant shall reasonably comply with the Collaborator Escalation process. As a result of the Collaborator Escalation, VIVIFY may review the qualifying status of the Merchant to be continued as a Merchant in VIVIFY. If, in the sole determination of VIVIFY, that after a Collaborator Escalation a Merchant is no longer suitable to remain a Merchant, then VIVIFY may terminate that Merchant forthwith as an absolute discharge of VIVIFY’s obligations hereunder.
To the extent possible, Merchant must assist Users with any Merchant Offerings and use all reasonable endeavors to facilitate any transaction using Vouchers or cash vouchers.
NO SALE OR PURCHASE OF MERCHANT OFFERINGS IS CONDUCTED THROUGH THE COLLABORATOR APP OR THE CARD OR THE SITE. TOKENS ARE NOT CASH AND MAY ONLY BE USED TO REDEEM MERCHANT OFFERINGS AND OFFERINGS MADE AVAILABLE BY VIVIFY.
6. BULK PASSES
Merchants may resell VIVIFY gift Passes (“Gift Pass”). Printed Gift Pass (“Printed Gift Pass”) pricing for the purchase for bulk sales and commission rate for consignment sales are as agreed in the Merchant Application form. Ordinary Gift Passes bought by the Merchants, which are paid for in advance by the respective Merchant(s), are owned by the Merchants. A VIVIFY has the right to determine Merchant’s outlet condition and surrounding deemed suitable for consignment sales.
VIVIFY will deliver the Printed Gift Pass to the respective Merchant as stated in the delivery order. However, VIVIFY makes no guarantee on the delivery period as Printed Gift Passes are subject to availability.
Upon the successful purchase of Gift Pass by Merchant it is the responsibility of the Merchant to sell the Pass and the Merchant will endeavor to sell it according to the market price or recommended retail price (RRP).
VIVIFY will endeavor to deliver the purchase of Printed Gift Pass to Merchant within two (2) weeks upon receiving the full payment from the Merchant subject to availability. Printed Gift Passes will be delivered to Merchant’s outlet by a VIVIFY representative to the address as specified in Merchant’s Application form.
VIVIFY does not accept liability whatsoever (including liability for negligence) concerning the loss of Printed Gift Pass(es). It is the Merchant’s responsibility to hold on to the Printed Gift Pass until the Pass is sold to the User. VIVIFY is not responsible for the loss or damage of printed Gift Pass and no replacement activation code will be generated for the Merchant.
VIVIFY reserves the right to refuse Gift Pass consignment sales or the purchase of any Printed Gift Pass or recall the purchase Printed Gift Pass if VIVIFY has any reason to suspect the Printed Gift Pass were fraudulently used by the Merchant.
Bulk passes may not be resold back to VIVIFY at the same or higher price.
7. REFERRAL PROGRAMME
Merchants are eligible for Merchant Referral Programme subject to this Section 7. Referring Merchants (“Referrer”) are eligible for the following programs:
Merchant-get-VIVER Referral Programme
For every qualifying Pass purchase, Referrer will earn a commission rate from the Pass price purchased at that time by the referred VIVER as agreed in the Merchant Application Form. VIVER referees will be rewarded additional Tokens that will be recorded in their Account upon activation of the Pass.
Merchant-get-Merchant Referral Programme
For every qualifying Merchant Account registration, Referrer will earn a commission amount as agreed in the Merchant Application Form upon activation of a Merchant Account and Merchant Referees will be rewarded additional Tokens that will be recorded in that Merchant Account upon activation of Referrer’s Account
Both Referrers and VIVER Referees or Merchant Referees, as the case may be, will be rewarded with either a cash voucher, Token, or earn a commission from VIVIFY for every successful referral with a qualifying Merchant Account registration or qualifying Pass purchase as determined by VIVIFY. A successful referral with a Merchant Account registration or Pass purchase is deemed qualifying by VIVIFY when a Merchant is a successful newly-joined Merchant or when a successful Pass is purchased and activated for the first time by a User.
The referral code (“Referral Code”) may not be combined with other codes. If a Referee receives Referral Codes from multiple Merchants, only the Referrer associated with the referral code used by the Referee will be rewarded. If the Referee:
(a) is a User, he may only use referral code once during activation of Trial Pass and once during first Pass purchase on the respective User Account via App; or
(b) is a Merchant, he may only use the referral code once during Merchant’s Account application.
A referral will be unsuccessful when;
(a) a Pass registration and/or purchase process was not completed by the Referee;
(b) a Referral Code was not used during the Account registration and Pass purchase process;
(c) a Referral Code was shared by an invalid Account owner;
(d) a Pass was not purchased via the User App (for example, a Printed Gift Pass was used);
(e) a Merchant has not come to an agreement and/or completed his/her application with VIVIFY;
(f) a Referral Code was not used during the Merchant application process; or
(g) the Referee has an existing Account with VIVIFY.
The value of the rewards from the Referral Program such as the number of Tokens or total cash voucher worth will depend on the promotion at the time when the referral code is used and will be updated from time-to-time on the VIVIFY Platform. VIVIFY may suspend or terminate the Referral Program or a Merchant’s ability to participate in it at any time for any reason. VIVIFY reserves the right to suspend accounts or remove rewards if VIVIFY notices any activity that it believes is abusive, fraudulent, or in violation of these Merchant Terms and Conditions. VIVIFY reserves the right to review and investigate all referral activities and to suspend Merchant Accounts or modify referrals in our sole discretion as deemed fair and appropriate.
The Merchant shall remit the costs and fees as specified in the Merchant Application Form, including all applicable Setup Fees and Annual Fees (Fees) before commencing as a Merchant. The Merchant acknowledges and agrees that the Fees is remuneration for any deliverable set out in the Merchant Application Form and that any deliverable that is not otherwise stated in the Merchant Application Form and/or these Merchant Terms and Conditions will incur an additional charge payable by the Merchant to VIVIFY (Additional Charge). Such Additional Charge if not set out in the Application Form and/or this Agreement will be communicated to the Merchants before VIVIFY performs any additional deliverable.
Invoices shall be issued according to local tax regulations by VIVIFY if applicable, to the Merchant. Remittances shall be made to VIVIFY’s designated bank (“Designated Bank”) in Ringgit Malaysia (RM) by wire transfer or such other method preferred by VIVIFY and communicated to Merchant. VIVIFY shall provide relevant account details on the Merchant Application Form. Unless otherwise specified, the Fees payable by the Merchant are exclusive of SST, or other tax, duty, or impost as required under the relevant legislation.
The Merchant shall bear and shall pay and fully indemnify VIVIFY against all liabilities or claims for any taxes, or any other governmental charges which any governmental authority claiming jurisdiction over VIVIFY or the area of operations the subject of this agreement may impose, assess or levy on account of or resulting from the Merchant’s execution of or performance under these Merchant Terms and Condition, as it arises during the Contract Period. VIVIFY may at its discretion, impose a 1.5% interest or liquidated damages on the overdue due debts monthly annum from the due date for payment until payment is made in full, as well as suspend the VIVIFY Services until full payment for the Fees is made. VIVIFY may at its discretion, set-off and deduct any outstanding amount due from Merchant without prior notice from any amount VIVIFY may owe to the Merchant.
For any monies due and owing to the Merchant, VIVIFY shall remit settlement to the Merchant on weekly basis. The settlement cut-off time of every week will be 24:00 (Malaysia Time) of every Sunday. VIVIFY shall remit the weekly settlement sum into the Designated Bank account of the Merchant within a week (1) after the weekly settlement cut-off day excluding any applicable bank floating period. However, VIVIFY makes no guarantee regarding the actual date of receipt of such settlement by the Merchant. VIVIFY may, together with each settlement to the Merchant, provide a transaction statement or similar transaction summary through the Merchant’s Collaborator App or any other method deemed suitable by VIVIFY containing a breakdown of settlement for the relevant transactions undertaken.
VIVIFY will remit all settlements to the Merchant’s Designated Bank in Ringgit Malaysia (RM) by wire transfer or other method preferred by VIVIFY. The Merchant shall provide relevant account details on the Merchant Application Form. It shall be the Merchant’s responsibility to ensure that the details of the Merchant’s Designated Bank provided to VIVIFY remain accurate and correct throughout the Merchant Agreement term and should keep VIVIFY updated if there are any changes. VIVIFY shall not be held liable should the settlement being remitted to a wrong account if the Merchant fails to comply with this Section 8.
Concerning each settlement made, the Merchant shall reconcile its sales report against the transaction statement or transaction summary (where the same is provided by VIVIFY) for the relevant transactions. If the Merchant discovers any discrepancy in the settlement by VIVIFY, the Merchant shall within fourteen (14) days from the settlement date notify VIVIFY of such discrepancy together with the relevant supporting documents evidencing the discrepancy, failing which the Merchant waives its rights to raise any dispute and is deemed to have accepted the settlement made by VIVIFY as correct. Where the Merchant notifies VIVIFY of a discrepancy within the timelines stated herein, the parties shall resolve the discrepancies in good faith as soon as practicable. Should there be any dispute about the settlement or any payment between the parties, VIVIFY shall only be obliged to remit the undisputed amount or part thereof to the Merchant before the resolution of such dispute. Each of the Merchant and VIVIFY shall bear their own cost of any obligation imposed upon them under the applicable law concerning any taxes or similar items in connection with this Merchant Agreement.
9. MERCHANT BENEFITS (ALLIES AND PARTNERS)
For every Token deducted by a User through a Merchant’s point-of-sale system, that Merchant earns and collects one (1) Token.
The Merchant Adverts can take the form of interstitial adverts, banners, featured Merchant columns, push notification, email marketing, social media posts, and stories.
Additionally, as a Merchant, you will be entitled to discounts on VIVIFY’s standard advertising packages. There are currently two packages on offer, these being the Gold Package and the Silver Package. For more details, on the purchase of the advertising packages, please contact your key account manager or email our team at email@example.com.
All Merchants will be eligible for a certain geographic exclusivity determined by VIVIFY. This means that VIVIFY will use our best efforts to ensure that no Merchant in the same category as selected in Merchant Application Form will be onboarded if they have an outlet or other physical presence within geographic exclusivity determined by Vivify from another Merchant in the same under the same category as stated in the Merchant Application Form. In determining “category”, the categories under the Merchant Application Form will control. In determining whether two Merchants are of the same “classification” under a “category”, VIVIFY must be satisfied that the goods and/or services offered by an incoming Merchant is substantially dissimilar or distinguishable from the goods and/or services of an existing, onboarded Merchant.
(a) Merchant X and Merchant Y are both vendors of food and beverage: Merchant X and Merchant Y belong to the same category.
(b) Merchant X is a hotel and Merchant Y is a traditional kuih Merchant X and Merchant Y do not belong to the same category.
(c) Merchant X sells coffee and juices while Merchant Y sells Malacca Chicken Rice. Merchant X and Merchant Y belong to the same category but do not belong to the same classification.
VIVIFY’s determination of a good or service’s “classification” is final.
The distance shall be calculated using a satellite navigation tool of our choice and any decision made by VIVIFY shall not be subject to appeal. Notwithstanding the foregoing, VIVIFY shall not be responsible for any Merchant’s self-determination of Merchant category made in the Merchant Application Form and expressly disclaims that it will conduct an investigation or due diligence in that regard.
Nonetheless, VIVIFY reserves the right to amend the Merchant categories as and when it deems necessary in its sole and absolute discretion.
10. MERCHANT BENEFITS (PARTNERS ONLY)
In addition to the Merchant benefits described above in Section 9, Merchant Partners are entitled to the following additional benefits that are specific for that Merchant Partner as set out in any Specific Terms.
VIVIFY may modify or enhance the Merchant Partner benefits with notice to the existing Merchant Partners.
11. CAMPAIGNS AND PROMOTIONS
Notwithstanding anything to the contrary herein, the Merchant shall honor all the promotional and advertising schemes which may be introduced by VIVIFY. Unless otherwise expressly specified by VIVIFY in writing, the Merchant shall procure all marketing and promotional materials directly from VIVIFY. In the event the Merchant decides to produce its own materials in promoting VIVIFY Services, all uses of VIVIFY intellectual property, including without limitation VIVIFY Trademarks, its logo and brand name (“VIVIFY IPR”) shall be subjected to VIVIFY’s written approval. The Merchant shall send copies of all materials which contain uses of VIVIFY IPR to VIVIFY in advance of their use to the e-mail address indicated in this Merchant Agreement.
Upon VIVIFY’s request, the Merchant shall display prominently at its premises, VIVIFY’s point of sales materials and/or other publicity material provided to it by VIVIFY. VIVIFY or its agents shall at all reasonable times have the right to enter and inspect the retail outlet or trading premises of the Merchant (if applicable).
VIVIFY may initiate campaigns from time to time that is to be taken apart by the Merchants. The payment terms under these campaigns shall be agreed upon by the parties from time to time. The Merchant shall participate in initiatives that VIVIFY may announce from time to time, such as new customer acquisition activities including those assisted by a promoter funded by VIVIFY, in customer promotional campaigns, in Merchant-get-Merchant or Merchant-get-VIVER program and other forms of Merchant loyalty programs and brand recognition initiatives.
The Merchant hereby agrees that VIVIFY may from time to time, display the Merchant’s logo, branding (including any trademarks and/or images whether or not available on public domains) on its platform and as part of the Services without further approval from the Merchant and the Merchant shall indemnify VIVIFY against all actions, proceedings, costs, claims, demands, loss, damages, liabilities, and expenses howsoever incurred, suffered, paid or payable by VIVIFY in any way arising from such usage.
12. CONDITIONS OF USE
As a condition of your use of the Merchant Services, you agree that:
(a) If an individual, you have reached the age of majority as defined under applicable law;
(b) If a company, you are validly organized under applicable law;
(c) You can create binding legal relations;
(d) You are not barred from offering receiving products or services under applicable law;
(e) You will not attempt to use the Merchant Services with crawlers, robots, spiders, scrapers, data mining, or extraction tools, or any other functionality;
(f) Your use of the Merchant Services will at all times comply with these Merchant Terms and Conditions;
(g) You will only make legitimate transactions that comply with the letter and spirit of the terms of the respective offers;
(h) You have the right to provide all information you submit to the Merchant Services, and all such information is accurate, true, current, and complete;
(i) You will update and correct information you have submitted to the Merchant Services, including all account information, and ensure that it is accurate at all times (out-of-date information will invalidate your account); and
(j) You will ensure that all Merchant Offerings are maintained for so long as you remain a Merchant and for so long as you use the Merchant Services.
(k) You will observe, perform, and agree to be bound by Appendix A.
13. ACCESS TO THE MERCHANT SERVICES
VIVIFY retains the right, at our sole and absolute discretion, to deny service or use of the Merchant Services or an Account to anyone at any time and for any reason. While we use reasonable efforts to keep the Merchant Services and your account accessible, the Merchant Services and/or your account may be unavailable from time to time. You understand and agree that there may be interruptions in service or events, Site access, User App access, Card usage, QR Code or POSM failures or errors, or access to your Account due to circumstances both within our control (such as routine maintenance) and outside of our control.
14. REPRESENTATIONS AND WARRANTIES
The Merchant is to commit to VIVIFY throughout the Term and is obligated to:
(a) provide an attractive generic offer to VIVER and Merchant Offerings;
(b) to ensure the redemption process is made according to these Merchant Terms and Conditions and to assist VIVERs during the redemption process
(c) pay VIVIFY the Fees, additional deliverables charge, and any charges by the provisions set out in this Merchant Agreement.
(d) supply all information and supporting documentation that is reasonably required by VIVIFY for VIVIFY to carry out its obligations under this Merchant Agreement.
(e) use reasonable efforts to demonstrate, promote and advertise VIVIFY including the existence of the User App and the terms of the VIVIFY and compliance to POSM if and when provided by VIVIFY in Merchant’s outlet, and never to disparage or engage in any defamatory conduct of any of VIVIFY’s offerings, the Services, another Merchant, or any User.
(f) Reply to User’s messages on the Services as soon as possible and in any event no later than one (1) working day.
Merchant hereby covenants, represents, undertakes, and warrants that:
(a) it has the full authority and power to enter into, execute and deliver this Agreement and to carry out and perform the services contemplated under this Agreement, that the execution by Merchant of this Merchant Agreement constitutes legal, valid and binding obligations on the Merchant, and that the execution, delivery, and performance of this Agreement will not violate any order, judgment or decree against or binding upon Merchant;
(b) it shall comply with all applicable consumer, personal data protection and other laws and regulations concerning its use of VIVIFY Services, its dealings with the VIVERs; and its processing, use, and disclosure of the VIVER’s data;
(c) it shall ensure the safety and confidentiality of its login name and password and shall keep VIVIFY fully indemnified from all liability, losses, damages, cost, and expense incurred by VIVIFY arising out of or in connection with the misuse of the same. The Merchant shall immediately notify VIVIFY upon learning of any unauthorized use of its login name and/or password;
(d) it shall observe the guidelines, procedure or such other updates as provided by VIVIFY from time to time during the term of this Merchant Agreement;
(e) it shall install any updates, fixes, and patches whenever they are made available or notified of its availability by VIVIFY;
(f) it has the full right and/or authority to offer the applicable goods and services and shall at its own cost obtain and maintain the necessary licenses and approvals from the government or any regulatory body for the provision of such goods and services and performance of its obligations under this Merchant Agreement;
(g) it shall at all times, display the logo and other such Trademarks of VIVIFY that may be mutually agreed at the retail outlet or trading platform of the Merchant;
(h) it shall provide VIVIFY the information as required by VIVIFY at the time it desires to become a Merchant of VIVIFY;
(i) the products and services detailed as “Prohibited Items” in Appendix B and such other prohibited items which VIVIFY may notify from time to time shall not be sold by the Merchant;
(j) it shall be solely responsible for all VIVERs service issues relating to the transaction, goods and services sold by the Merchant, including but not limited to charges, order fulfillment, order returns, refunds, exchanges and adjustments, rebates, functionality and warranty, technical support, customer complaints and feedback concerning experiences with its personnel, policies or processes and the Merchant shall bear all expenses and/or costs relating thereto;
(k) it shall not conduct any unlawful or illegal transactions using VIVIFY Services;
(l) it shall immediately report to VIVIFY upon the discovery of any fraud, theft, loss, unauthorized usage, or any other occurrence of unlawful or illegal acts with VIVIFY Services, User or Collaborator Apps and/or their respective use. The Merchant agrees to lodge a police report whenever instructed by VIVIFY and to give VIVIFY a certified copy of such report;
(m) it shall cooperate with VIVIFY and provide all transaction related details required by any government or regulatory body;
(n) other than the equipment and terminals provided by VIVIFY, Merchant shall be responsible for all other equipment (including upgrades and modifications required) necessary to use VIVIFY Services and User and Collaborator Apps and to carry out the transactions, and also for the security and integrity of all information and data transmitted, disclosed and/or obtained through the use of VIVIFY Services and/or User and Collaborator Apps; it shall not discriminate the VIVIFY Services against other lifestyle or reward or discount services; or discriminate VIVERs seeking to make Voucher redemption using the User App against other lifestyle or reward services, nor impose any restrictions and/or conditions on the use of Voucher redemption other than that approved or prescribed by VIVIFY;
(o) it shall not charge the VIVER any additional fee or charges also other than the price of the service and/or product after deducting the face value of offers provided and goods and service tax imposed by law;
(p) it shall keep proper account and correct copies of all documents/records relating to the transactions and VIVIFY shall be allowed at any reasonable time to inspect or make copies of all such documents and shall preserve such documents and records for a period of at least two years from the transaction date;
(q) it shall not use the VIVIFY Services in any manner and/or engage in any activities which are prejudicial to VIVIFY and/or in any manner which would bring disrepute to VIVIFY, all of which shall be determined based on VIVIFY’s opinion;
(r) it shall ensure that the account registered by the Merchant on Collaborator App remains personal to itself and it shall not register an account on behalf of any third party or in any way transfer or assign the account to any third party without VIVIFY’s prior written consent;
(s) it shall be solely responsible for the outlets and staffs’ Merchant’s Collaborator App account management and VIVIFY shall not be responsible for any consequences arising from the abuse or misuse of Merchant’s Collaborator App; and
(t) it shall not use the VIVIFY Services and/or Merchant App in any manner dishonestly or in bad faith or with malicious intent, in VIVIFY’s opinion.
We reserve the right at all times to discontinue or modify any part of these Merchant Terms and Conditions at our sole discretion. If we make changes that affect your use of the Merchant Services or our services, we will post notice of the change on the Merchant Terms and Conditions page. Any changes to these Merchant Terms and Conditions will be effective upon our posting of the notice; provided that these changes will be prospective only and not retroactive. If you do not agree to the changes, you may close your Account and you should not use the Merchant Services or any services offered through the Merchant Services after the effective date of the changes. We suggest that you revisit our Merchant Terms and Conditions regularly to ensure that you stay informed of any changes. You agree that posting notice of any changes on the Merchant Terms and Conditions page is adequate notice to advise you of these changes and that your continued use of the Merchant Services or our services will constitute acceptance of these changes and the Merchant Terms and Conditions as modified.
16. YOUR ACCOUNT
Upon successful onboarding, a VIVIFY representative will create an Account for the Merchant. Merchant(s) with more than one outlet may be assigned an account corresponding to the number of outlets. Each Merchant Account will be assigned one (1) login ID and one (1) shop-manager login ID if requested. . As part of your Account settings, you have the option to change your password.
You must safeguard your password and supervise the use of your Account. You are solely responsible for maintaining the security of your account and maintaining settings that reflect your preferences. We will assume that anyone using the Merchant Services or transacting through your Account is you. You agree that you are solely responsible for any activity that occurs under your Account.
Your Account is non-transferable. You cannot sell, combine, or otherwise share it with any other person. Any violation of these Merchant Terms and Conditions, including, without limitation, failure to maintain updated and correct information about your Account may result in us being unable to offer you the Merchant Services and may result in suspension or cancellation of your Account. If your account is canceled, you may forfeit any pending, current, or future benefits such as Tokens and/or prizes and any other forms of unredeemed value in your Account without notice. Upon termination, the provisions of these Merchant Terms and Conditions that are, by their nature, intended to survive termination (such as any disclaimers, all limitations of liability, and all indemnities) shall survive. We also reserve the right to change or discontinue any aspect or feature of our services or the Merchant Services, including, without limitation, requirements for use.
17. YOUR CONDUCT
All interactions on the Merchant Services must comply with these Merchant Terms and Conditions. To the extent your conduct, in our sole discretion, restricts or inhibits any other user from using or enjoying any part of the Merchant Services, we may limit or terminate your privileges on the Merchant Services and seek other remedies, including, without limitation, suspension or cancellation of your Account or forfeiture of any Tokens, Vouchers, cash vouchers, and/or prizes and any other forms of unredeemed value in your Account.
While using the Merchant Services, you will not and you will not attempt to:
(a) Impersonate any person or entity;
(b) Access data not intended for you, such as logging into a server or an account which you are not authorized to access;
(c) Make any false or fraudulent entries or provide misleading information;
(d) Engage in any illegal activities in using the Merchant Services;
(e) Post or transmit to or via the Merchant Services any content which is indecent, obscene, false, menacing or offensive in character with the intent to annoy, abuse, threaten or harass any person;
(f) Post or transmit to or via the Merchant Services any content which is defamatory, seditious, incites violence or incites any other unlawful activity, or any content that would otherwise be contrary to any written law in Malaysia, or that could reasonably give rise to civil or criminal proceedings;
(g) Post or transmit to or via the Merchant Services any content which improperly discloses confidential information or improperly discloses information that is protected under any written law in Malaysia;
(h) Advertise any products, services, or websites other than VIVIFY’s or a participating Merchant’s products, services, or websites;
(i) Knowingly transmit any virus or other disabling feature to or through the Merchant Services, or attempting to overload, “flood,” “spam,” “mail bomb,” or “crash” the Merchant Services;
(j) Interfere with, disrupt, or create an undue burden on the Merchant Services or the associated systems, including the Collaborator App;
(k) Post or transmit to or via Merchant Services any copyrighted or trademarked material belonging to a third party or any material or content that infringes the rights or privacy of VIVIFY or others;
(l) Frame or mirror any part of the Merchant Services without our written approval; or
(m) Modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Merchant Services, or the associated systems, including the Collaborator App, or cause any other person to do so;
(n) Use the Merchant Services or any of its resources to solicit consumers, Merchants, or other third parties to become users or partners of other online or offline services directly or indirectly competitive or potentially competitive with VIVIFY;
Act illegally or maliciously against the business interests or reputation of VIVIFY, our Merchants, or our services.
18. PERSONAL DATA
We take the privacy of your Personal Data (defined in the Personal Data Protection Policy) seriously. We encourage you to carefully review our Personal Data Protection Policy for important disclosures about ways that we may collect, use, and share personal data and your choices. Our Personal Data Protection Policy is incorporated in and subject to these Merchant Terms and Conditions, and available at https://vivify.com.my/privacy-policy/.
All documents, knowledge, data, or information of whatsoever nature disclosed to or acquired by the Merchant directly or indirectly from MPSB in connection with the Agreement, or otherwise including, but not limited to financial information, technical information, including but not limited to research, development, procedures, data, designs, and technical know-how, business information, including but not limited to operations, planning, marketing interests, and services disclosed by VIVIFY to the government or regulatory body, personal information/data of any User, and VIVIFY staff or employees, and all confidential or proprietary concepts, documentation, reports, lists, files, data, specifications, software, source code, object code, flow charts, databases, data files, inventions, information, know-how and trade secrets, whether or not patentable or copyrightable, successful means, where relevant, any disputed transactions between VIVIFY and Merchant (“Confidential Information”) disclosed or communicated by both parties in connection with this Merchant Agreement including but not limited to the business and operations of VIVIFY and the terms of this Merchant Agreement shall be treated as Confidential Information unless the information: –
(a) is or becomes publicly available through no fault of the Merchant;
(b) which the Merchant can prove was in its possession or known to it before its receipt from VIVIFY;
(c) is or was rightfully received by the Merchant from a third party without a duty of confidentiality being owed by the Merchant to the third party, except where the Merchant knows that the third party has obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to VIVIFY; or
(d) was independently developed by the Merchant without the use of the Confidential Information.
Both Parties agree that the terms of this Merchant Agreement are confidential and will not be disclosed to any third party other than as mutually agreed upon in writing. This Section 19 will survive the termination or expiry of this Merchant Agreement. The parties shall (and will procure that their personnel shall) keep confidential all Confidential Information, not disclose or transfer to any third party (other than as permitted hereunder) any Confidential Information; and not use (including by making unnecessary copies) other than as strictly necessary for the performance of this Merchant Agreement any Confidential Information.
Each party may disclose the other party’s Confidential Information
(a) to its employees, officers, representatives, or advisers who need to know such information to exercise the party’s rights or carry out its obligations under or in connection with this Merchant Agreement. Each party shall ensure that its employees, officers, representatives, or advisers to whom it discloses the other party’s Confidential Information comply with this Section 19
(b) as may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
The Merchant shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices properly placed or embedded by the other party on or in any of its Confidential Information. Where the Merchant is required to disclose any Confidential Information according to any laws or any acts of authority or rules of any stock exchange or is for court proceedings, the Merchant shall where practicable and lawful give twenty-four (24) hours’ notice to VIVIFY that it is required to disclose the Confidential Information so that VIVIFY has an opportunity to protect the confidentiality of its Confidential Information provide VIVIFY with a copy of the Confidential Information that the Merchant is to disclose. Upon the expiry or termination of this Merchant Agreement, the Merchant shall promptly return to VIVIFY or, where instructed, destroy Confidential Information of VIVIFY and immediately cease using all Confidential Information. Where required by VIVIFY, the Merchant shall provide to VIVIFY a written undertaking confirming that it has fully complied with the requirements of this Section 19 and that it is not in possession or control of any of VIVIFY Confidential Information.
20. INTELLECTUAL PROPERTY
The Merchant Services, any content on the Merchant Services (including content submitted by Users), and the infrastructure used to provide the Merchant Services are proprietary to VIVIFY, including any VIVIFY IPR thereunder. By using the Merchant Services and accepting these Merchant Terms and Conditions: (a) VIVIFY grants you a limited, personal, non-transferable, nonexclusive, revocable license to use the Merchant Services according to these Merchant Terms and Conditions and to any additional terms and policies set forth by VIVIFY; and (b) you agree not to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sell, or re-sell any content, software, products, or services obtained from or through the Merchant Services without the express permission of VIVIFY.
The Merchant Services contains copyrighted material, trademarks, and other proprietary information, including, without limitation, text, software, photos, video, graphics, music, and sound, and the entire contents of the Merchant Services are protected by copyright, trademark, and other intellectual property laws of Malaysia. VIVIFY owns a copyright in the selection, coordination, arrangement, and enhancement of such content, as well as in the content original to it. You may not modify, distribute, publish, transmit, publicly display, publicly perform, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. Except as otherwise expressly stated under copyright law, no downloading, copying, redistribution, retransmission, publication, or commercial exploitation of the content without the express permission of VIVIFY or the copyright owner is permitted. If downloading, copying, redistribution, retransmission, or publication of copyrighted material is permitted, you will make independent attribution and/or make no changes in or deletion of any author attribution, trademark legend, or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material. Any violation of these restrictions may result in a copyright, trademark, or other VIVIFY IPR infringement that may subject you to civil and/or criminal penalties.
VIVIFY owns both registered and unregistered trademarks, and the VIVIFY Trademarks and variations thereof found on the Merchant Services are trademarks owned by VIVIFY and all use of these marks inures the benefit of VIVIFY.
Other marks on the Merchant Services not owned by VIVIFY may be under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of VIVIFY unless otherwise stated, or maybe the property of their respective owners. You may not use VIVIFY’s name, logos, trademarks or brands, or trademarks or brands of other Merchants or other third parties on the Merchant Services without VIVIFY’s express permission.
21. UNSOLICITED MATERIALS
We do not accept or consider, directly or through any VIVIFY employee or agent, unsolicited ideas of any kind, including, without limitation, ideas or suggestions relating to new or improved products, enhancements, names or technologies, advertising and marketing campaigns, plans, or other promotions. Do not send us (or any of our employees) any unsolicited ideas, suggestions, material, images, or other work in any form (“Unsolicited Materials”). If you send us Unsolicited Materials, you understand and agree that the following terms will apply, notwithstanding any cover letter or other terms that accompany them:
(a) VIVIFY has no obligation to review any Unsolicited Materials, nor to keep any Unsolicited Materials confidential; and
(b) VIVIFY will own and may use and redistribute, Unsolicited Materials for any purpose without restriction and free of any obligation to acknowledge or compensate you.
22. DISCLAIMER OF WARRANTY
As permitted by applicable law, you expressly agree that use of the Merchant Services is at your sole risk. Neither VIVIFY, nor its subsidiaries or affiliates or any of their respective employees, agents, Merchants, third-party content providers or licensors or any of their officers, directors, employees or agents, warrant that use of the Merchant Services will be uninterrupted, secure, virus-free, or error-free, nor do they make any warranty as to:
(a) The results that may be obtained from the use of the Merchant Services; or
(b) The accuracy, completeness, or reliability of:
(i) The content on the Merchant Services, including, without limitation, VIVIFY Offerings, Merchant Offerings, or other available programs,
(ii) Descriptions of VIVIFY Offerings, Merchant Offerings or other available programs, or
(iii) Merchant Content provided through the Merchant Services. The Merchant Services and all content, User Content, Merchant Content, and other information contained on the Merchant Services, VIVIFY Offerings, Merchant Offerings, and other available programs accessible or available through the Merchant Services, are made accessible or available on an “as is” and “as available” basis.
To the extent allowed by applicable law, VIVIFY hereby disclaims all representations, warranties, and conditions, whether express, implied, or statutory, as to the operation of the Merchant Services or the content, User Content, Merchant content, or other information contained on the Merchant Services or the VIVIFY Offerings, Merchant Offerings or other available programs accessible or available through the Merchant Services, including, without limitation, those of title, non-infringement, non-interference, merchantability, suitability, and fitness for a particular purpose, as well as warranties implied from a course of performance or course of dealing.
23. LIMITATION OF LIABILITY
As permitted by applicable law, in no event shall VIVIFY, its subsidiaries or affiliates or any of their respective employees, officers, directors, agents, merchants, partners, third-party content providers or licensors, or any of their officers, directors, employees, or agents, be liable for any direct or indirect lost profits or lost business damages, indirect, incidental, special, consequential, or punitive damages arising out of, related to, or in connection with any of the following: (a) your use of the Merchant Services, the content, User content, Merchant content, including, without limitation, any personal data, and any other information either contained in the Merchant Services or submitted by you to the Merchant Services; (b) your inability to use the Merchant Services; (c) modification or removal of content submitted on the Merchant Services; (d) the VIVIFY Offerings, Merchant Offerings, and other available programmes accessible or available through the Merchant Services; (e) any goods or services purchased or obtained directly from a Merchant; (f) these Merchant Terms and Conditions; or (g) any improper use of information you provide to the Merchant Services, including, without limitation, any personal data. In no event will VIVIFY’s a liability in connection with a VIVIFY Offering, Merchant Offering, and other available programs exceed the amounts paid for the applicable Pass or trial Pass.
24. ELECTRONIC COMMUNICATIONS
When you use the Merchant Services or send emails to VIVIFY, you are communicating with us electronically and consent to receive electronic communications related to your use of the Merchant Services. We will communicate with you by email or by posting notices on the Merchant Services. You agree that all agreements, notices, disclosures, and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. Notices from us will be considered delivered to you and effective when sent to the email address you provide on the Merchant Services or from which you otherwise email us.
25. PUBLIC NATURE OF YOUR STATEMENTS
You understand and agree that all of your comments, images, audio, video, or any other post in any medium or format whatsoever (“Merchant Content”) made through the Merchant Services are public and not private. Any other person (whether or not a Merchant) may view your Merchant Content without your knowledge. Please do not include any Personal Data (as defined in our Personal Data Protection Policy) in your Merchant Content. VIVIFY does not control or endorse any statement, in any medium or format whatsoever, made by Users or Merchants through the Merchant Services, and we specifically disclaim any liability concerning the aforementioned statements. Any Merchant Content you post through the User Services is not confidential.
26. GRANT OF LICENCE
By posting Merchant Content or other information on or through the Merchant Services, you grant VIVIFY a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the Merchant Content alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights through multiple tiers of sublicensees. Your license of any Merchant Content or information submitted above extends to use for promotions, advertising, market research, or any other lawful purpose, without limitation.
27. THIRD-PARTY WEBSITES
The Merchant Services may contain links to websites maintained by other parties. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents on such websites. We expressly disclaim any representations regarding the content or accuracy of materials on such websites or the privacy practices of those websites. If you decide to access websites maintained by other parties, you do so at your own risk. We are not responsible or liable, directly or indirectly, for any damage, loss, or liability caused or alleged to be caused by or in connection with any use of or reliance on any content, products, or services available on or through any such linked site or resource.
You agree to defend, indemnify, and hold harmless VIVIFY, its subsidiaries, and affiliates, and their respective directors, officers, employees, and agents from and against all claims and expenses, including, without limitation, attorneys’ fees, arising out of, related to, or in connection with any of the following: (a) any User’s use of the Merchant Offerings (b) any Merchant content submitted or posted by you, in connection with the Merchant Services, or any use of the Merchant Services in violation of these Merchant Terms and Conditions; (c) fraud you commit or your intentional misconduct or gross negligence; or (d) your violation of any applicable law or rights of a third party, including, for the avoidance of doubt, a User.
You are solely responsible for your interactions with Users and other users of the Merchant Services. To the extent permitted under applicable laws, you hereby release VIVIFY from all claims or liability related to your goods and services, regardless of whether such good or service is a Merchant Offering available through the User App, including, but not limited to any loss or damage, including harm to reputation, caused to you by a User or a third party howsoever arising.
29. FORCE MAJEURE
VIVIFY shall be excused from performance under these Merchant Terms and Conditions to the extent it or a User is prevented or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from: (a) weather conditions or other elements of nature or acts of God; (b) acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; (c) quarantines or embargoes; (d) labor strikes; (e) error or disruption to major computer hardware or networks or software failures; or (g) other causes beyond the reasonable control of VIVIFY or a User, as applicable.
You may not assign these Merchant Terms and Conditions, or any rights, benefits, or obligations hereunder, by operation of law or otherwise, without the express written permission of VIVIFY. Any attempted assignment that does not comply with these Merchant Terms and Conditions shall be null and void. VIVIFY may assign these Merchant Terms and Conditions, in whole or in part, to any third party in its sole discretion.
31. ENTIRE AGREEMENT
Without prejudice to any other rights of the parties under this Agreement or at law, this Agreement may be terminated immediately by either Party without any liability whatsoever where either party is involved in any unlawful acts under any laws in Malaysia; or
(a) by a party by giving written notice, where the other party is in material breach of any warranty, terms, and conditions of this Agreement and such breach, is incapable of being remedied or were capable of remedy, is not remedied within thirty (30) days of receipt of notice in writing by the non-defaulting party specifying the nature of the breach;
(b) by a party by giving written notice where the other party ceases its business; or
(c) by VIVIFY by giving written notice where the Merchant is unable to justify the occurrence of downtime and not being able to resolve the problem within the reasonable timeline stipulated by VIVIFY, or where there is a change in the management, constitution, nature, or control of the Merchant’s business from that existing on the date of this Merchant Agreement; or where the Merchant is in breach of any acts, statutes, laws, by-laws, rules and/or regulations imposed by any party, regulatory body, or government agency.
Notwithstanding anything to the contrary, VIVIFY may terminate this Merchant Agreement, without any liability whatsoever to the Merchant, and without assigning any reason whatsoever, by giving thirty (30) days written notice to the Merchant.
The termination or expiry of this Merchant Agreement, in whole or in part, does not operate as a waiver of any breach by a party of any of its provisions and is without prejudice to any rights, liabilities, or obligations of any party which have accrued up to the date of termination or expiry including the right of indemnity.
On termination or expiry of this Merchant Agreement by either party for any reason:
(a) The Merchant shall forthwith return to MPSB such VIVIFY Hardware, originals, and any property including Confidential Information of the other which it has in its possession or control. To the extent technically practicable, each party shall destroy or permanently erase all copies of any Confidential Information but may retain one copy (and any automatically generated back-up electronic copies) solely for (and for so long as required by) any law, court, or regulatory agency or authority or stock exchange or internal compliance and diligence procedures and policies. In any case, any Confidential Information that is not returned or destroyed including oral Confidential Information shall remain in perpetuity subject to the confidential restrictions set out in these Merchant Terms and Conditions.
(b) The Merchant shall immediately cease holding itself out as a Merchant to VIVIFY and shall immediately cease using the VIVIFY Services, Intellectual Property Rights including any Trademarks, and remove all signs, names, insignia, advertisements and/or any other material which identifies it as part of the network of VIVIFY and shall return to VIVIFY all literature and other material relating to VIVIFY in its possession.
In the event during the promotional period where Fees were waived or discounted during Merchant application, the Merchant shall pay the full price of such Fees or the balance of the Setup Fee stated on the Merchant’s Application form if and only if Merchant chooses to terminate this agreement within six (6) months from the Commencement Date.
33. DISPUTES WITH USERS
The Merchant shall provide goods or services corresponding to the Merchant Offerings following a Voucher redemption by a VIVER upon the successful consummation of a transaction (that is, a Voucher redemption) via the User’s App and confirmed by VIVIFY. VIVIFY shall not be responsible for any transactions that have not been confirmed by VIVIFY.
All disputed transactions shall be the sole liability of the Merchant. VIVIFY shall not be under any obligation or responsibility to investigate any disputed transactions, including any errors in the redemption of Vouchers by a VIVER. Notwithstanding the generality of the foregoing, where VIVIFY is notified of any invalid or disputed transaction or Voucher redemption by VIVERs, VIVIFY may notify the Merchant associated with the disputed transaction by email, and where possible accompanied by an explanation of the reason for it if VIVIFY deems relevant.
Upon the receipt of such email by VIVIFY, the Merchant agrees to investigate disputed transactions and take all reasonable steps to resolve disputes with VIVERs, and follow the procedures for handling disputed transactions which VIVIFY advises from time to time as applicable. VIVIFY shall have the right to suspend the processing of such Voucher, Tokens, and any entries associated with any transaction or Voucher redemption or withhold the settlement of any monies due and owing to the Merchant (including by way of set-off from any amounts due and owing by a Merchant to VIVIFY) of the amount of such transaction if applicable until the satisfactory completion of any investigation by VIVIFY.
It remains the duty of the Merchant to resolve any disputes, claims, or complaints the Merchant may have received from the VIVER in respect of any transaction or Voucher redemption for Merchant Offerings. VIVIFY shall not be held liable in any manner whatsoever in the event there is a dispute between the Merchant and the VIVER with the transaction including but not limited to the quality of the goods and/or services to be redeemed, overcharging or late delivery unless, and only if, it can be reasonably shown by the Merchant that such dispute arose, directly or indirectly, from the gross negligence, fraudulent act, material default or the breach, material errors and/or omissions by VIVIFY in the provision of VIVIFY Services under this Agreement.
34. DISPUTES WITH VIVIFY
Any disputes arising out of or related to these Merchant Terms and Conditions and/or any use by you of the Merchant Services or VIVIFY’s services shall be governed by the laws of Malaysia, without regard to its choice of law rules and regard to conflicts of laws principles. VIVIFY and you specifically disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
VIVIFY and you submit to the exclusive jurisdiction of the courts of Malaysia.
35. NO WAIVER AND SEVERABILITY
No waiver by either you or VIVIFY of any breach or default or failure to exercise any right allowed under these Merchant Terms and Conditions is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Merchant Terms and Conditions. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction holds any provision of our Merchant Terms and Conditions invalid, such invalidity shall not affect the enforceability of any other provisions contained in these Merchant Terms and Conditions, and the remaining portions of our Merchant Terms and Conditions shall continue in full force and effect.
VIVIFY OPERATION RESTRICTION REGULATION
1. Merchant must not process a transaction after receiving a decline response (except for when there is: a system failure for that transaction, transaction time-out, a VIVER request to the Merchant to reprocess the transaction.).
2. Merchant shall stop processing the transaction as soon as VIVIFY instructs the Merchant to do so.
3. The transaction between the Merchant and the VIVER must not be a transaction for goods or services that violates a law that applies to the Merchant or VIVER or for goods and services outside the description of Merchant’s business.
4. Merchant shall not attempt to levy additional service charges or any other additional charges for use of User App and must not attempt to set any minimum transaction limits for the use of User App unless it is stated as such on the Voucher terms.
5. The Merchant shall not engage in any of the following which will be breaches of the Merchant Agreement (including these Merchant Terms and Conditions):
5.1 tamper, hack, reverse-engineer, modify or otherwise corrupt (or attempts to tamper, hack, reverse-engineer, modify or corrupt) the security or functionality of all Merchant Services, including for the avoidance of doubt, its Apps and Website;
5.2 using the Merchant Services for money laundering activities;
5.3 using the Merchant Services for any unlawful, illegal and/or immoral activities and/or purposes, including but not limited to violation of the laws of Malaysia and/or Bank Negara Malaysia’s regulations and guidelines; and
5.4 manipulate or exploit VIVIFY’s promotional campaigns and activities or other VIVIFY services and apps (where applicable) in any way which VIVIFY may deem as improper, irregular, or dishonest.
PROHIBITED CONTENT LIST
1. Adult goods and services.
2. Severed body parts which include organs or other body parts.
3. Copyright unlocking devices that are used to circumvent copyright protection.
4. Drugs and drug paraphernalia which includes illegal drugs and drug accessories.
5. Hacking and cracking materials such as guides, information, or tools enabling illegal access to company protected property.
6. Illegal goods including materials, products, or information inciting illegal goods or enabling illegal acts.
7. Offensive goods or materials that:
7.1 Defame or slander any person or groups of people; or
7.2 Promote or incite violent acts; or
7.3 Incite intolerance or hatred.
8. Offensive goods consisting of crime scene photos or items, including personal belongings, associated with criminals.
9. Weapons including firearms, ammunition, knives, brass knuckles, gun parts, and other armaments.
10. Any product or service, which does not abide by all applicable laws and regulations in Malaysia