Terms & Conditions
Last updated: 19 March 2020
Please read these terms and conditions ("Terms") carefully. These Terms govern your participation in myGDEX Open API, your access to and use of each of the Platform and the Tools, and GDEX may update these Terms from time to time. By accessing or using any of the Platform and the Tools, you agree to be bound by these Terms. If you do not agree to these Terms, you must immediately cease access to and use of the Platform and the Tools.
Access to, and use of, password protected or secure areas of the Platform or the Tools are restricted solely to users who have been authorised by GDEX. You may not obtain or attempt to obtain unauthorised access to any part of the Platform or the Tools, or to any other protected information, through any means not intentionally made available by GDEX for your specific use. A breach of any of the provision of these Terms may be an offence under the Computer Computer Crimes Act 1997 of Malaysia and the Applicable Laws.
Access to, and use of, the Platform and the Tools are solely for the purposes of promoting and facilitating access to and use of the GDEX Services. If GDEX believes you or your Users are using or are attempting to use any of the Platform and the Tools in any form or manner that is detrimental to the commercial interest of the GDEX Group, GDEX may at its sole discretion discontinue your access and use of the Platform and the Tools.
If you are below 18 years old, you must obtain consent from your parent(s) or legal guardian(s), their acceptance of these Terms and their agreement to take responsibility for: (i) your actions; (ii) any charges associated with your use of the Platform and the Tools (as applicable); and (iii) your acceptance and compliance with these Terms. If you do not have consent from your parent(s) or legal guardian(s), you must immediately discontinue your access of this Platform and use of the Tools.
If you are accessing or using any of the Platform and the Tools on behalf of an entity, you represent and warrant that (i) you have the authority to bind that entity to these Terms; and (ii) by accepting these Terms, you are doing so on behalf of that entity, and all references to "you" and similar expressions in these Terms shall mean you and that entity.
If you use the Platform as an interface to, or in conjunction with other Gdex products or services, then the terms for those other products or services shall also apply.
Definitions and interpretation
In these Terms, unless the context otherwise requires, the following definitions shall apply:
"Account" has the meaning give to it in Clause 2.1.
"APIs or myGDEX Open APIs" means the application programming interfaces made available by GDEX via the Platform.
"Applicable Laws" means all applicable statutes, enactments, acts of the state legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, directions, directives and orders of any governmental authority, statutory authority, tribunal, board, court or recognised stock exchange, as may be applicable, international treaties and regulations relating to the import or export of data or software and privacy and local laws.
"Application" means the software application, website or other interface that you develop, own or operate and which involves the use of any API.
"Application Keys" means the confidential security keys that GDEX provides to you through the Platform for your use of the APIs.
"Authentication" has the meaning given to it in Clause 6.2(a).
"Clause" means a clause in these Terms.
"Confidential Information" has the meaning given to it in Clause 9.1.
"Data" means information and any other material (including databases, text, graphics, photographs, animations, audio, music, video, links or other content) made available by any member of the GDEX Group to GDEX Users.
"Data Protection Legislation" means the PDPA and all Applicable Laws relating to (as applicable) the collection, use, disclosure, security, protection and processing of Personal Data or privacy, including where applicable the guidance and codes of practice issued by the Department of Personal Data Protection.
"GDEX" means GD Express Sdn Bhd (Company No: 347624-X).
"GDEX Content" means all Data stored in and retrieved from the databases of the GDEX Group or any part thereof, which may include Personal Data, and does not include information that you obtain independent of the GDEX Group by lawful means.
"GDEX Group" means GDEX, its related corporations and affiliates.
"GDEX Indemnitees" means members of the GDEX Group and all of their respective officers, employees, directors, agents, contractors and assigns.
"GDEX Policies" means any relevant guidelines, notices, instructions, operating rules and policies pertaining to access to, or use of, the Platform, Tools or GDEX Services which GDEX may issue from time to time.
"GDEX Services" means delivery, logistics and any other services made available by the GDEX Group to the GDEX Users.
"GDEX User" means any person who uses GDEX Services.
"Losses" means all penalties, losses, settlement sums, costs (including legal fees and expenses on a solicitor-client basis), charges, expenses, actions, proceedings, claims, demands and other liabilities, whether foreseeable or not.
"Intellectual Property Rights" means all copyright, patents, trademarks, service marks, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
"Marks" means, with respect to an entity, such entity’s names, trademarks, service marks, trade names, logos and other distinctive brand features.
"Modification" has the meaning given to it in Clause 10.1.
"PDPA" means Personal Data Protection Act 2010.
"Personal Data" has the meaning given to it under the PDPA or the Applicable Laws (as the case may be).
"Platform" means the online platform owned and operated by GDEX as part of myGDEX Open API.
"Prohibited Materials" means any information, graphics, photographs, data and any other material that:
(a) contains, or which may contain, viruses, worms or other potentially harmful components which may threaten, infect, damage or otherwise interfere with the Platform, the Tools, GDEX systems or otherwise;
(b) creates a security risk or vulnerability;
(c) infringes any third-party Intellectual Property Rights or any other proprietary rights;
(d) is false, inaccurate, misleading, defamatory, libellous, harassing or threatening;
(e) is obscene, pornographic, indecent, counterfeited, fraudulent, stolen, harmful or otherwise illegal under the Applicable Laws; or
(f) is or may be construed, in GDEX's sole opinion, as abusive, offensive or otherwise objectionable.
"Tools" means the various features, content, services and functions made available through the Platform from time to time, including, without limitation, the Data, the APIs, the Application Keys and specifications and technical documentation accompanying any API.
"User" means, in relation to any Application, the end-users of such Application, Your Personnel, and anyone who sublicenses such Application.
"User Materials" means any information, text, graphics, photographs and materials or content submitted by you through the Platform or any of your Applications.
"Your Personnel" means your employees, personnel, secondees, agents, principals, contractors and subcontractors.
In these Terms, unless the context otherwise requires:
(a) the headings are for convenience of reference only and shall not affect the interpretation or be used in the construction of these Terms;
(b) reference to an agreement or document (including a reference to these Terms) is to the agreement or document as amended, supplemented, novated or replaced;
(c) references to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, whether in a physical document or in an electronic communication or form or otherwise;
(d) reference to the singular shall include references to the plural and vice versa;
(e) references to a party to these Terms or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives);
(f) references to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(g) mentioning anything after "includes", "including", "for example", or similar expressions, does not limit what else might be included; and
(h) nothing in these Terms is to be interpreted against a party solely on the ground that the party put forward these Terms or a relevant part of it.
Account and Registration
Usage of the Tools requires an account registered with GDEX in connection with the Platform ("Account"). You may not access (or attempt to access) any of the Tools by means which have not been authorised by GDEX.
By applying for an Account, you represent and warrant that all information submitted during the application process is true and accurate. You undertake to ensure that all such information remains accurate and updated.
GDEX, may in sole and absolute discretion, exercise any or all of the following rights:
(a) GDEX shall have the right to accept or reject any application for an Account; and
(b) GDEX shall have the right to suspend or terminate your Account without any reason, prior notice or any liability if it becomes aware (or suspects) that you have failed to comply with any of these Terms or terms and conditions relating to the provision of the GDEX Services by any member of the GDEX Group.
You shall at all times maintain the security and prevent the misuse of your Account, and any assigned keys or other credentials provided to you by GDEX in connection with the Platform. GDEX may at any time in its sole and absolute discretion, request that you update your Personal Data or account settings. You are to notify GDEX immediately if you have knowledge of or reason for suspecting that the security of your Account, assigned keys or other credentials has been compromised.
You may not transfer, assign, loan or share your Account, assigned keys or other credentials provided to you by GDEX in connection with the Platform with any third party without the prior written consent of GDEX.
You acknowledge and agree that (i) you shall be fully responsible for, and bound by, any and all access and use of the Platform and the Tools, and any information, data or communication referable to your Account, whether or not authorised by you; and (ii) the GDEX Group shall (to the fullest extent permitted by the Applicable Laws) be entitled to act upon, rely on and hold you fully responsible and liable in respect thereof as if the same were carried out or transmitted by you.
General Terms Relating to the Platform
You may only access and use the Platform and the Tools to create, distribute and use Applications to access and interact with the GDEX Services in a manner which is in accordance with these Terms, the GDEX Policies and the Applicable Laws. Such access and use is currently made available at no charge. However, GDEX reserves the right, in its sole and absolute discretion, to charge such fees and on such terms as it may from time to time deem appropriate with two (2) weeks prior written notice issued.
The Tools may only be used to facilitate use of the GDEX Services by you and/or your Users (as may be applicable) in accordance with GDEX Policies.
You shall be fully responsible for ensuring that you, Your Personnel performing any activities in connection with these Terms from time to time and your Users comply with these Terms, and any act or omission by any of Your Personnel or your User amounting to a breach of these Terms shall be deemed a breach by you.
Save as expressly agreed by GDEX in writing, under no circumstances shall any member of the GDEX Group be (i) construed to be a party to (or to have endorsed, sponsored, certified or involved in) any transaction between you and any third party; or (ii) liable in any way for any transaction between you and any third party, whether or not such transaction directly or indirectly relates to the Tools.
Any member of the GDEX Group (other than GDEX) may provide any of the Tools on behalf of GDEX, and these Terms shall also govern your relationship with such member in respect of the Tools.
Nothing in these Terms shall prohibit or restrict GDEX or any other member of the GDEX Group from entering into similar or different agreements with third parties, or from developing products or services that may compete with your Applications.
GDEX will provide you with the Application Keys that permit you to access GDEX’s database. You shall all times maintain the security and prevent the misuse of the Application Keys, and ensure that the Application Keys are used only as permitted by GDEX.
Without prejudice to the generality of Clause 4.1, you hereby agree to be bound by the following provisions:
(a) your Applications shall not contain, permit, or attempt to cause or introduce, any Prohibited Materials;
(b) you will provide GDEX with a high-level application architecture that describes the key functions of your Application, any modules within your Application (and their purpose), any dependency on third party modules or applications, and any and or data flows associated with such Application;
(c) GDEX may in its sole and absolute discretion limit your use of the APIs (for example, by limiting the number of API requests which you may make or the number of Users per Application) and you undertake not to circumvent such limitations;
(d) all API calls initiated by your Users will be made through your Application Keys and shall count towards your maximum permitted API calls;
(e) you shall be fully responsible for your Applications, and for all costs and expenses related to your use of the Tools, including but not limited to the cost of developing or maintaining any Application. In particular, access to certain Tools, GDEX Content and increased API call limits may require special certifications. In the event that any special certification is required, GDEX has the sole and absolute discretion to hold you responsible for any costs associated with such certification and to require you to make the necessary modifications to your Application to meet such certification criteria;
(f) your Users will have no programmatic control over the API; and
(g) you shall, in relation to each of your Applications, enter into a binding agreement with each User before permitting the User to use the Application, and ensure that the agreement stipulates that:
(i) the User shall be bound by these Terms before or upon use of the Application by the User;
(ii) the User's right to use the Application and any sublicence granted by you to the User pursuant to these Terms shall be terminated in the event of any breach of these Terms or if directed by GDEX; and
(iii) GDEX is a third-party beneficiary to the agreement, and shall have the right (exercisable at its sole discretion) to enforce any term of the agreement (including, the termination clause) against the User directly.
You agree to provide GDEX with any authorisations required to conduct regular security testing on your Application, including but not limited to penetration testing and vulnerability scanning against your Application and/or the Application’s hosting infrastructure.
GDEX may test your Application using either manual security testing methods or automated security testing methods, including but not limited to:
(a) Blackbox application testing to identify vulnerabilities and weaknesses within your Application;
(b) Whitebox application testing where you will be required to provide GDEX with requested credentials to access your Application for the purpose of understanding your Application architecture, functionality and for the purposes of conducting security testing; and
(c) Automated testing using software to expose vulnerabilities and weaknesses within your Application (if any)
Any vulnerabilities identified in your Application by GDEX must be remediated by you within five (5) days of you being notified by GDEX of such vulnerability, and in any event must be remediated prior to the release of your Application to the Users.
You agree to integrate your Application and all related data with any security services that GDEX may provide (“GDEX Security Services”). Any such requirement for integration shall be made known to you prior to your access to any Application Keys or APIs, and failure to comply will result in your inability to access such Application Keys or APIs. You acknowledge that GDEX will monitor such integration through the GDEX Security Services and will notify you or any suspicious or unauthorised activities. Upon receipt of such notification, you undertake to respond and act in accordance to remediate such issues within five (5) business days. GDEX may at its discretion notify you and require the addition or update of any GDEX Security Services integrated with your Application, and you undertake to authorise and carry out any such addition or update within thirty (30) days upon receipt of notification.
You may host your Application on any server, whether or not approved by GDEX. GDEX reserves the right at any time impose such terms and conditions as it deems appropriate in relation to the hosting of the Application. Such terms and conditions will be made publicly available to you, whether through publication of a GDEX Policy or otherwise, and you hereby agree to comply with such terms and conditions.
The use of the Tools may require open source software, which shall be subject to a separate licence agreement between you and the applicable licensor of such open source software. You undertake to comply with the terms of such agreement. To the extent such agreement contains terms which are inconsistent with, and which expressly supersede, these Terms, those terms shall prevail to the extent of the inconsistency and solely with respect to the open-source software which is the subject of such agreement.
Intellectual Property Rights
You hereby agree and acknowledge that:
(a) all Intellectual Property Rights in this Platform and the Tools belong to the GDEX Group;
(b) save as expressly set out in this Clause 5, no other rights or licenses (including licenses or rights under any patent, copyright, trade mark or any other Intellectual Property Right) are granted either directly, by implication, or otherwise by the GDEX Group; and
(c) you will not undertake any action inconsistent with the foregoing.
Subject to these Terms, GDEX grants you a royalty-free, limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use the Platform and the Tools solely to:
(a) develop, test, maintain and support your Application;
(b) to allow use of the GDEX Services in accordance with these Terms through your Application;
(c) make limited copies of GDEX Content only to the extent necessary to perform the activities permitted by these Terms, and provided that such copies shall be deleted when no longer required for those activities; and
(d) to display and rearrange the GDEX Content in accordance with these Terms, provided always that you may not disseminate the API by any means or in any form, except as an integral part of your Application.
Subject to these Terms, and the prior written consent of GDEX, GDEX grants you a royalty-free, limited, non-exclusive, non-transferable, non-sublicensable, revocable licence to display its Marks as set forth in the GDEX Policies for the purpose of promoting or advertising your Application. All use by you of GDEX's Marks (including any goodwill associated therewith) will inure to the benefit of the GDEX Group.
You may sublicence rights granted under Clause 5.2(b) or Clause 5.3 (as applicable) to your Users solely to the extent that such sublicence is necessary to enable your Users to use your Application for the Permitted Purpose, and provided that any act or omission by your Users amounting to a breach of these Terms shall be deemed a breach by you.
Unless otherwise expressly provided in these Terms, the GDEX Group shall not acquire any ownership of any Intellectual Property Rights in any of your User Materials. Further, you agree that:
(a) you shall be fully responsible for the contents of your transmissions or communications through the Platform;
(b) before transmitting any User Materials, you shall ensure that you have the necessary rights and authority prior to such transmission;
(c) you grant to GDEX a perpetual, irrevocable, worldwide, sublicensable, royalty-free, and non-exclusive licence to use, host, store, modify, communicate, and publish the User Materials in connection with the provision of the Platform and the APIs, and for purposes which you have instructed; and
(d) GDEX may in its sole and absolute discretion display your Marks for the purpose of advertising or publicising your participation in myGDEX Open API and use of the API. Where you request for your Application to be hosted on any GDEX site or to be hosted by GDEX, you direct and authorize GDEX and its affiliates to host, link to, and otherwise incorporate the Application into GDEX Services and to carry out any copying, modification, distribution, internal testing, or other processes GDEX deems necessary.
You shall not disseminate or permit the use of any GDEX Content made available to you through the Platform by any means or in any form, except as an integral part of your Application and in accordance with these Terms read with the relevant GDEX Policies.
Without prejudice to such other guidelines which GDEX may issue from time to time, you hereby agree to comply with the following provisions:
(a) All GDEX Content displayed within your Application shall be subject to the following provisions in respect of the display:
(i) in relation to any User, the Application may only display:
(A) GDEX Content which is publicly available within the GDEX Services (in the event that any GDEX Content ceases to be publicly available, you must promptly remove such GDEX Content from the display);
(B) GDEX Content which is specific to the GDEX Account of the User; and
(C) subject to the explicit prior consent of such other User, GDEX Content which is specific to the GDEX Account of such other User;
(ii) GDEX Content may not be combined or comingled with non-GDEX Content; and
(iii) GDEX Content must be kept reasonably up to date.
(b) You shall seek GDEX’s prior written consent before using any GDEX Content in a manner which allows you or your Users to derive any of the following information:
(i) any site-wide statistics across the GDEX Services; and
(ii) any other information as may be prescribed by GDEX from time to time; whether directly from the GDEX Content or indirectly from the GDEX Content and any data and other information which you or your User has or is likely to have access. GDEX reserves the right to require you to cease the use of any GDEX Content which may allow for the derivation of any of the information set out above.
(c) Unless expressly permitted by GDEX, you will not display any web page served by GDEX servers in an aggregated display of different web pages in a browser display area (for example, by framing or mirroring).
Restrictions and Conditions
You may not use or access (or otherwise attempt to, or facilitate others to, use or access) any of the GDEX Services, the Platform, the Tools and the GDEX Content in any way which may, directly or indirectly, undermine the commercial interests of the GDEX Group.
Your use of the Platform, the Tools and the Marks shall be subject to the following terms and conditions:
(a) you shall comply with these Terms, any relevant GDEX Policies and the Applicable Laws;
(b) you shall not do (or attempt to do) any of the following acts:
(i) publish, distribute or allow access or links the GDEX Services, including to the Tools, from any location or source other than your Application;
(ii) enable or permit the disclosure of GDEX Content other than as authorised under these Terms;
(iii) use GDEX Content to determine or verify the identities or profiles of any User;
(iv) display GDEX Content relating to the performance of any GDEX Service relative to the performance of any other third-party services;
(v) use GDEX Content with the intent to design, build, promote or otherwise benefit any services in competition (whether directly or indirectly) to GDEX Services;
(vi) sell, rent, trade, distribute, store, copy, modify, or otherwise make available for commercial use GDEX Content, other than allowed for pursuant to these Terms;
(vii) use GDEX Services to promote or engage in seller arbitrage;
(viii) collect, process or use Personal Data of any User other than as provided in these Terms;
(ix) knowingly create any Application that may be used in breach of any of these Terms, the GDEX Policies, any other applicable GDEX agreement or policy and Applicable Laws;
(x) use APIs in a manner that exceeds reasonable request volumes, constitutes excessive or abusive usage or otherwise violates any GDEX Policies that GDEX may implement from time to time;
(xi) create liability for GDEX or cause GDEX to lose (in whole or in part) the services of GDEX’s ISPs or other suppliers.
(xii) provide any data or information to GDEX unless you represent and warrant that it is accurate and you have all rights necessary to provide such data or information to GDEX, and for GDEX to use it;
(xiii) obtain unauthorised access into, interfere with, disrupt, disable, over-burden or otherwise impair the Platform, the Tools, the GDEX Services, or any other computer systems or networks connected to, any of the Platform, the Tools or the GDEX Services;
(xiv) use, post, promote or transmit through the Platform or Services any Prohibited Materials;
(xv) interfere with another’s utilisation and enjoyment of the Platform and the Services;
(xvi) modify, decompile, reverse engineer or otherwise extract any of the Tools, APIs or GDEX Content;
(xvii) use the Platform or the Tools other than in conformance with the acceptable use policies of any connected computer networks, any applicable Internet standards and any other Applicable Laws; or
(xviii) use any unauthorised format of consignment note other than the format provided by GDEX in the API Library or approved by GDEX in writing;
(c) where the APIs contain software or code which is subject to open-source licence or third party licence, and to the limited extent that such licence expressly supersedes these Terms, the terms of such licence shall instead prevail over these Terms;
(d) you shall conspicuously display (to the satisfaction of GDEX) any attribution(s) and Marks required by GDEX as described in, or generated by, the use of specific Tools relating to any API;
(e) unless otherwise agreed by GDEX in writing, you shall not make any statement or action which suggest partnership with, endorsement by, assumption of responsibility, or sponsorship by any member of the GDEX Group; and
(f) you shall take all necessary steps to ensure that the Applications are not mistaken or misrepresented as being the products or services of the GDEX Group.
GDEX reserves the right to monitor and audit your compliance with these Terms, including immediate access in the event of any potential or actual breach by you or Your Personnel of the Data Protection Legislation.
At GDEX's request, you shall provide GDEX free access to use your Application for the purpose of monitoring and auditing your Application. Such right to monitor and audit may include GDEX accessing and using your Application, requesting for documents and information and visiting your facilities.
In the event that GDEX, in its sole and absolute discretion, is of the view that you have failed to comply with any of these Terms or terms and conditions relating to the provision of the GDEX Services by any member of the GDEX Group, GDEX may take all such steps and remedies as it deems appropriate. Such steps include, without limitation, investigating, suspending or terminating your Account and seeking specific performance.
By using any of the Platform and the Tools, you acknowledge and agree that:
(i) managing the contractual relationship between GDEX and you under the relevant terms and conditions;
(ii) administering the MyGDEX Open API;
(iii) developing, maintaining and providing the Platform, the Tools and the MyGDEX Open API;
(iv) verifying and conducting checks on your identity your use of the Platform and the Tools;
(v) monitoring and conducting checks on your compliance with these Terms; and
(vi) complying with Applicable Laws and requests from any governmental authority, statutory authority or other authority;
(c) in relation to Personal Data collected by GDEX:
(i) GDEX may transfer or disclose Personal Data (whether your Personal Data or any third party Personal Data provided by you to GDEX) to third parties, whether located within or outside Malaysia, to facilitate the purposes described in this Clause 8; and as a result of the foregoing, those third parties may subsequently collect, use and disclose the said Personal Data for similar purposes;
(ii) the third parties referred to in Clause 8.1(b)(i) include (A) members of the GDEX Group; (B) GDEX's agents, contractors, professional advisers and other third party service providers that provide services to the GDEX Group in connection with the operation of the Platform and the GDEX Services; and (C) the relevant governmental authority, statutory authority, tribunal, board, court or recognised stock exchange, as may be applicable;
(iii) pursuant to Clause 8.1(b)(i), Personal Data may be transferred to places which do not have in place Applicable Laws which are substantially similar to the PDPA; notwithstanding, GDEX will comply with the PDPA where Personal Data is to be transferred out of Malaysia; and
Your participation in the MyGDEX Open API and use of the Tools may allow you to obtain Personal Data from and about GDEX Users (who may or may not be your Users). Accordingly, you undertake to comply with each of the following:
(a) you shall comply with all applicable Data Protection Legislation and any relevant GDEX Policies; in the event of any overlap, conflict or inconsistency in the obligations under applicable Data Protection Legislation or policies, the obligation that affords the higher data protection levels will prevail;
(b) you shall obtain the prior consent of your Users before:
(i) collecting, using, disclosing or processing their Personal Data; or
(ii) transferring or disclosing their Personal Data to third parties, whether located within or outside Malaysia, and ensure that such consent meets the minimum standards which apply pursuant to Clause 8.2(a);
(c) in the event that you obtain (by whatever means) Personal Data from and about GDEX Users, you shall use such Personal Data only as strictly necessary to perform activities permitted under these Terms; and unless otherwise agreed by the relevant GDEX User, you may not use such Personal Data to contact such GDEX User or provide any such GDEX User with your contact information in any manner.
"Confidential Information" includes, without limitation, the Tools, GDEX Content, Personal Data, your Account, any materials, communications, and information that are marked confidential or that would normally be considered confidential under the circumstances. For the avoidance of doubt, Confidential Information need not be novel, unique, patentable, copyrightable or constitute a trade secret in order to be designated Confidential Information.
You hereby agree to maintain as confidential at all times all Confidential Information obtained from the GDEX Group and you shall not (i) directly or indirectly disclose, or permit the Confidential Information to be disclosed, to any person; or (ii) use the Confidential Information, to the detriment of the GDEX Group except:
(a) as required by the Applicable Laws;
(b) to the extent that the Confidential Information is already or becomes public knowledge, otherwise than as a result of your breach of these Terms;
(c) as authorised in writing by GDEX; or
(d) as permitted by these Terms.
Any information you provide to GDEX pursuant to these Terms shall not be considered as Confidential Information, and the GDEX Group may use any such information without any liability or responsibility to you.
This Clause 9 shall survive termination of these Terms (howsoever occasioned).
GDEX may from time to time, without giving any reason or prior notice, modify, upgrade, suspend, discontinue ("Modification") any of the Platform, the Tools and GDEX Services, and GDEX shall not be liable if any such Modification affects your Application or prevents you from accessing any of the Tools. In the event that any Modification affects your Application, you shall (at your own cost) make the required changes to ensure compatibility with or interface with the APIs and other relevant GDEX Services.
GDEX may by notice through the Platform or by such other method of notification as GDEX may designate (which may include notification by way of e-mail), vary any of these Terms, such variation to take effect on the date specified by GDEX through the above means. It is your responsibility to review these Terms for changes. If you use the Platform or the Tools after such date, you are deemed to have accepted such variation. If you do not accept the variation, your sole and exclusive remedy is to stop access to and use of the Platform and the Tools and terminate these Terms. GDEX's right to amend these Terms shall be exercisable at its sole and absolute discretion.
Limitation of Responsibility and Liability
The Platform and the Tools are provided on an “as is” and “as available” basis. No representations or warranties of any kind, implied, express or statutory, including the warranties of non-infringement of third party rights, title, merchantability, satisfactory quality or fitness for a particular purpose, are given in conjunction with the Platform or the Tools. Without prejudice to the generality of the foregoing, GDEX does not warrant:
(a) the accuracy, timeliness, adequacy, commercial value or completeness of all data and information contained in the Platform and the Tools;
(b) that any of the Platform and the Tools are error free or will operate without interruption or are compatible with all equipment and software configurations, or that any identified defect will be corrected;
(c) that the Platform and the Tools are free from any computer virus or other malicious, destructive or corrupting code, agent, program or macros;
(d) the security of any information transmitted by you or to you through the Platform or the Tools, and you accept the risk that that any information transmitted or received through the Platform or the Tools may be, for example, accessed by unauthorised third parties or disclosed by GDEX or its officers, employees or agents to third parties purporting to be you or purporting to act under your authority. Transmissions over the Internet and electronic mail may be subject to interruption, transmission blackout, delayed transmission due to internet traffic or incorrect data transmission due to the public nature of the Internet.
GDEX Indemnitees shall not be liable to you for (i) any direct, consequential, special, indirect, exemplary, punitive or other liability whether in contract, tort, or any other legal cause of action under these Terms; or (ii) for any Losses whatsoever or howsoever caused, regardless of the form of action, arising directly or indirectly in connection with your use of the Platform or the Tools, including (but not limited to):
(a) any access, use or inability to use the Platform, the Tools or any website or webpage linked to the Platform;
(b) unforeseen circumstances preventing the proper performance of the Platform despite any reasonable precautions taken by GDEX. Such circumstances include, but are not limited to, act of God (such as, but not limited to, fires, explosions, earthquakes, and floods), power outage, theft, equipment or system failure, hacking attack and unusually high levels of use which have the effect of causing disruption or delay in the Platform;
(c) reliance on any Tools and GDEX Content. You should not act on any data or information without first independently verifying its contents;
(d) any system, server or connection failure, error, omission, interruption, delay in transmission, computer virus or other malicious, destructive or corrupting code, agent program or macros; and
(e) any use of or access to any other website or webpage linked to the Platform, even if advised of, or having contemplated, the possibility of such liability.
Any risk of misunderstanding, error, damage, expense or Losses resulting from the use of the Platform is entirely at your own risk and the GDEX Indemnitees shall not be liable therefor.
Notwithstanding anything in these Terms, certain Applicable Laws may imply warranties or conditions or impose obligations upon GDEX which cannot be excluded, restricted or modified except to a limited extent. To the extent that such legislation applies, these Terms shall be read subject to such Applicable Laws and nothing in these Terms is intended to alter or restrict the operation of such Applicable Laws.
To the fullest extent permitted by the Applicable Laws, you agree to indemnify and hold harmless the GDEX Indemnitees from and against all Losses arising out of or relating to your or your User’s use of the Platform, including (but not limited to):
(a) any access or use of any of the Platform and the Tools referable to your Account;
(b) your Applications;
(c) your User Materials;
(d) your actual or alleged breach of any of these Terms and your actual or alleged infringement of any third party right of any nature whatsoever; and
(e) your negligent or willful conduct.
GDEX will give you prompt notice of any Losses, however failure to provide such notice shall not relieve you of your liabilities or obligations hereunder, except solely to the extent of any material prejudice as a direct result of such failure.
To the fullest extent permitted by the Applicable Laws, you agree to:
(a) defend the GDEX Group against any third-party legal proceeding and pay damages finally awarded to such third party and against the GDEX Group or pay any settlement agreed to by GDEX as a result of and to the extent attributable to a third party claim that (i) any of your Applications and User Materials infringe the Intellectual Property Right of a third party, or (ii) arises from your breach of these Terms; and
(b) without prejudice to Clause 12.2(a), cooperate fully in the defence of any third-party legal proceeding.
Notwithstanding the foregoing, GDEX reserves the right to control its own defense and follow such course of action as it reasonably deems necessary to protect its interests, and you shall fully indemnify GDEX for all costs (including legal fees and settlement payments) reasonably incurred in such course of action.
Hyperlinks, Alerts and Advertising
For your convenience, GDEX may include hyperlinks to other websites or content on the Internet that are owned or operated by third parties. Such linked websites or content are not under the control of GDEX and GDEX shall not be liable for any errors, omissions, delays, defamation, libel, slander, falsehood, obscenity, pornography, profanity, inaccuracy or any other objectionable material contained in the contents, or the consequences of accessing, any linked website. Any hyperlinks to any other websites or content are not an endorsement or verification of such websites or content and you agree that your access to or use of such linked websites or content is entirely at your own risk.
GDEX may attach banners, java applets and such other materials to the Platform for the purposes of advertising any products of services of GDEX or certain third parties. For the avoidance of doubt, you shall not be entitled to receive any payment, fee or commission in respect of any such advertising or other promotional materials.
These Terms may be terminated by the following means:
(a) GDEX may, at any time, without giving any reason , and without any liability, (i) disable, suspend, or terminate your Account, discontinue your access to the Platform and/or the Tools or any part thereof, or (ii) terminate these Terms, with immediate effect without any liability or other obligation to you.
(b) You may only terminate these Terms by giving seven (7) days' notice in writing to GDEX and upon termination, cease your use access to the Platform.
Upon the termination of these Terms for any reason:
(a) your Account and all licences granted under these Terms will automatically terminate with immediate effect;
(b) you will destroy all intermediate copies of GDEX Content and Personal Data in your possession within fourteen (14) days, and provide written proof of destruction to GDEX upon request; and
(c) you will take all reasonable steps requested by GDEX in making an orderly transition to ensure that GDEX Users who are using your Applications are not prejudiced.
Termination of these Terms for any reason shall not affect any rights, remedies, obligations, or liabilities that have accrued up to the date of termination, including the right to claim damages in respect of any breach which existed at or before the date of termination.
On termination of these Terms for any reason, Clauses which are by their nature intended to survive shall continue in full force and effect. Such Clauses include for example, Clauses 3 (General Terms Relating to the Platform) 5 (Intellectual Property Rights), 8 (Data Protection), 9 (Confidentiality), 11 (Limitation of Responsibility and Liability), 12 (Indemnities), 14 (Termination), 15 (General Provisions) and 16 (Governing Law and Dispute Resolution).
Assignment: You may not assign your rights under these Terms without the prior written consent of GDEX. GDEX may assign its rights under these Terms to any third party.
Binding and conclusive: You acknowledge and agree that any records (including records of any telephone conversations relating to the Platform, if any) maintained by GDEX or its service providers relating to or in connection with the Platform and Services shall be binding and conclusive on you for all purposes whatsoever and shall be conclusive evidence of any information and data transmitted between us and you. You hereby agree that all such records are admissible in evidence and that you shall not challenge or dispute the admissibility, reliability, accuracy or the authenticity of such records merely on the basis that such records are in electronic form or are the output of a computer system, and you hereby waive any of your rights, if any, to so object.
Correction of errors: Any typographical, clerical or other error or omission in any acceptance, invoice or other document on the part of GDEX shall be subject to correction without any liability to you.
Cumulative rights and remedies: The rights and remedies provided under these Terms are cumulative and are without prejudice and in addition to any rights or remedies the GDEX Group may have in law or in equity, and no exercise by the GDEX Group of any one right or remedy under these Terms, or at law or in equity, shall (save to the extent, if any, provided at law or in equity) operate so as to hinder or prevent the GDEX Group's exercise of any other such right or remedy as at law or in equity.
Public Statements: You shall not issue any public statement or comments relating to the MyGDEX Open API unless you have obtained prior consent in writing from GDEX. You permit GDEX to make public statements about your participation in the MyGDEX Open API as and when required.
Entire agreement: These Terms shall constitute the entire agreement between you and GDEX relating to the subject matter hereof and supersedes and replaces in full all prior understandings, communications and agreements between you and GDEX with respect to the subject matter hereof.
Force majeure: GDEX shall not be liable for any non-performance, error, interruption or delay in the performance of its obligations under these Terms (or any part thereof) or for any inaccuracy, unreliability or unsuitability of the Platform or the Tools if this is due, whether in whole or in part, to a circumstance or event beyond its reasonable control.
Injunctive relief: The GDEX Group may seek immediate injunctive relief if GDEX determines in its reasonable discretion that a breach or non-performance is such that a temporary restraining order or other immediate injunctive relief is the only appropriate or adequate remedy.
Language: In the event that these Terms are executed or translated in any language other than English, the English language version of these Terms shall govern and shall take precedence over the translated version.
No waiver: No failure or delay by the GDEX Group to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
(a) All notices or other communications given to you if:
(i) communicated through any print or electronic media as GDEX may select will be deemed to be notified to you on the date of publication or broadcast; or
(ii) sent by post or left at your last known address will be deemed to be received by you on the day following such posting or on the day when it was so left.
(b) You may only give notice to GDEX in writing sent to its designated address or e-mail address, and GDEX shall be deemed to have received such notice only upon receipt. While GDEX endeavours to respond promptly to notices from you, GDEX cannot guarantee that it will always respond with consistent speed.
(c) Notwithstanding Clauses 15.11(a) and 15.11(b), GDEX may from time to time designate other acceptable modes of giving notices (including but not limited to e-mail or other forms of electronic communication) and the time or event by which such notice shall be deemed given.
Relationship of the Parties: Nothing in these Terms is intended to create, or will be construed as constituting or evidencing, a partnership, agency, joint venture, or employer-employee relationship between you and GDEX, Except where expressly so stated in the Terms, no party has authority to make any representation for, act in the name or on behalf of or otherwise to bind any other party.
Rights of third parties: No person, other than you, GDEX and members of the GDEX Group, shall have the right to enforce any third party rights under the Malaysian contract law or any similar legislation in any jurisdiction. Nothing in the foregoing shall affect the rights of any permitted assignee or transferee of these Terms.
Severability: If at any time any provision of these Terms shall be or shall become illegal, invalid or unenforceable in any respect, the legality, validity and enforceability of the remaining provisions of these Terms shall not be affected or impaired thereby, and shall continue in force as if such illegal, invalid or unenforceable provision was severed from these Terms.
Sub-contracting and delegation: GDEX reserves the right to delegate or sub-contract the performance of any of its functions in connection with the Platform or the Tools and reserve the right to use any service providers, subcontractors or agents on such terms as it deems appropriate.
Governing Law and Dispute Resolution
This Agreement is governed by and is to be construed in accordance with the laws of Malaysia. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Malaysia and waives any right to object to proceedings being brought in those courts.
If any dispute or difference shall arise between the parties hereto touching on any matter or thing herein contained, during the implementation of this Agreement, the Parties shall endeavour to settle it amicably.
Without prejudice to any other rights or remedies that the GDEX Group may have, you agree that damages alone would not be an adequate remedy for any breach of these Terms by you. Accordingly, the GDEX Group shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Terms.