MERCHANT TERMS & CONDITIONS

MERCHANT TERMS & CONDITIONS
Last updated January 1, 2021

These terms and conditions (“the Agreement”) apply to any party (“the Merchant”) wishing to engage Sharkbate Sdn.Bhd (1363562-K) (“SHARKBATE”) for the provision of loyalty reward program services (“the Services”) through its Smartphone application Sharkbate (“the App”) to any customer (“the Registered Member”). Please read these Terms and Conditions carefully before accessing or using the information and services for the App through its marketing platforms (“platforms”) or any website portal (“portal”) it provides. By accessing or using the platforms or portal for the App, the Merchant agrees that it has read, understood and agrees to be bound by Sharkbate Sdn.Bhd. Terms & Conditions.

1. Services

1.1 Sharkbate provides the Services to Merchant or representatives of Merchant seeking to establish a loyalty reward program for Registered Members of the App.

1.2 Merchant loyalty reward programs will become live on the App/Web only when the Merchant has approved all information, its offer and logo/ icon/ picture through the portal or written communication.

1.3 Sharkbate reserves the right to individually charge for multiple offers through the same Merchant listing.

1.4 Sharkbate shall make such modifications to any loyalty reward program as are reasonably requested by the Merchant.

1.5 Sharkbate shall be entitled at any time without notifying the Merchant, to make changes to Merchant loyalty reward programs which are necessary to comply with any applicable security or statutory requirements and shall determine, at its absolute discretion, the manner in which the changes are applied.

1.6 Sharkbate reserves the right to determine which Smartphone operating systems the app works on.

2. Setting up an account

2.1 The Merchant is required to create an account with Sharkbate if the Merchant wishes to engage the Services of Sharkbate.

2.2 The Merchant may be required to pay for pre-set commission and transaction fees, which is agreed as the informed pricing plan.

2.3 All rates are in Malaysia Ringgit unless stated otherwise.

2.4 Sharkbate reserves the right to accept and reject the Merchant registration.

3. Merchant offer

3.1 The Merchant structures the offer and reward for its customers. The offer and reward are placed on the Registered Members smartphone and must also be prominently displayed at the point of sale within the store.

3.2 The Registered Member is entitled to get the discount / reward on the App/Web for each purchase whether by value, quantity or visit.

3.3 Any dispute regarding the loyalty reward program will be between the merchant and its Registered Member. You agree that Sharkbate is not responsible, and shall have no liability to you or your customers, with respect to the loyalty reward program.

4. Business Communication & Data and Graphic

4.1 Any electronic communication with Registered user ("customer/partner/staff/guest/member/business-owner/influencers/Referral/Sales-personnel") must be done through the Platforms or Portal or with a method and process previously agreed with Sharkbate.

4.2 Sharkbate owns its Registered Members' contact details and transactional data records.

4.3 For paying Merchant customers, Sharkbate shall provide access to customer contact details and transactional data records relating only to customers and records pertaining to the offers and promotions that the merchant provides the Sharkbate Platform.

4.4 Any registered user personal and contact details or transactional data records passed to the Merchant shall be used in accordance with this policy, the Sharkbate Privacy Policy, any relevant national SPAM and Data Protection acts - PDPA and must be construed in accordance with the laws of Malaysian government or comply with the laws in the place where the business is located.

4.5 Registered users have the right to request copies of their personal information and data held provided by Merchants via Sharkbate Dashboard. Sharkbate have not obliged to provide such information directly to the user. Registered user also have the right to have their personal information deleted. Please refer to the Sharkbate Privacy Policy for more details.
4.6 It is the Merchant's sole and exclusive responsibility to ensure that all legal requirements for Merchant's business are met. Such legal requirements include, but are not limited to, ensuring claims on advertising and graphics are true, accurate, and may be legally stated, as well as ensuring all products are lawful. Sharkbate shall not be responsible for any legal, technical, or regulatory specifications. All graphics or artworks provided by Sharkbate is for Sharkbate's Application within and related use only.

5.Appointment

5.1 By registering a Sharkbate Account with us, you agree to appoint Sharkbate as your authorized collection and/or service provider for payment integration.You should immediately cease use of Sharkbate Account and Sharkbate Services if at any time you disagree to Sharkbate being your collection agent and/or service provider for payment integration. Sharkbate shall at all times be entitled to accept or reject your registration of Sharkbate Account and/or your appointing us as collection agent as we deem fit.

5.2 You are aware Sharkbate is not a Financial Institution and therefore has no control over any of the Financial Institution’s uptime and availability.

6. Payment & Rights to Terminate a Service

6.1 Merchant may be required to pay a certain prepaid amount to establish the Service. The transaction fees and pre-set commission may be charged according to an agreed schedule of rates.

6.2 The Merchant Plan and access to Sharkbate Services starts on the date the Merchant is verified and approved by Sharkbate and payment for the Prepaid has been received by Sharkbate via a valid Payment Method.

Transaction Fee & Pre-set Commission

6.3 Transaction Fee & Pre-set Commission conducted via Sharkbate are on a prepaid basis regardless of the plan you have subscribed to. The plan referred as Pricing Plan. Prepaid basis means you are required to reload your Sharkbate Merchant Account with credit before you can conduct any transactions.The reload amount shall be in Malaysian Ringgit (MYR). The Minimum Reload amount is RM 500.00.

6.4 You at your own will can stop using Sharkbate accordingly to clauses 6 (Payment & Rights to terminate a service) by stopping all collection and will remain to have access to your Sharkbate Account within a certain period refer to clauses 6 (Payment & Rights to terminate a service ).Nevertheless, all the paid fees such as Transaction Fees,Pre-set Commission or any other fees are non-reversible and non-refundable respectively.

6.5 Sharkbate shall from time to time be entitled to revise the Transaction Fees or any other fees provided reasonable notification via its website / app is provided to the Merchants.

6.6 Your Sharkbate Credit in your Sharkbate Account will expire after two (2) year from the date of the last transaction appearing in Sharkbate Account (i.e.,account inactivity).The unused Sharkbate credit in your Sharkbate Account is non refundable but transferable (if requested) to another Sharkbate Account. Sharkbate does not accept liability for any loss arising from its execution of transfer instructions due to inaccurate details provided by the merchant. Any instructions for transfer of the unused Sharkbate credit shall be made before the expiry date referred to above. Otherwise, the unused Sharkbate Credit will be forfeited by Sharkbate.

6.7 By registering a Sharkbate Account with us, you consent for us to automatically reload your Sharkbate Prepaid Account (via your daily collection) so that your Sharkbate Account does not, at any point in time, have a negative credit balance. For Example, if the Merchant current sharkbate account balance is RM10.00, but incoming sales settlement amount is RM700.00, Transaction fees and pre-set commission are RM50.00. Sharkbate will be auto deduct RM500.00 (Minimum Prepaid Package Amount) from the sales settlement amount to Sharkbate Prepaid Account.So the Settlement amount to Merchant will be RM200.00 and balance of Merchant Account will be RM460.00 (RM500 - RM50.00 (Transaction Fees & Pre-set commission) + RM10.00). In the event a negative credit balance is incurred, you consent for us to offset such negative credit balance with your daily total collection (in multiples of RM500). For example, if the negative credit balance is -RM200.00, then we will deduct RM500. If Sharkbate Credit balance is -RM700.00, then we will deduct RM1,000.00.

6.8 Sharkbate shall be entitled to, at its sole discretion, suspend you from utilising Sharkbate Services until the negative credit balance has been settled/offset.

6.9 Sharkbate payment gateway solution is provided by Billplz and SenangPay.

6.10 The Merchant confirms and agrees that all payments, receive from Sharkbate customers is collected and return reimbursed to Merchants according to agreed settlement arrangement - clause 7.

Tax

6.11 Any and all fees (including the Transaction fees and Pre-set Commission) are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies or duties. Merchant shall reimburse Sharkbate and hold Sharkbate harmless for all sales, use, value added tax, goods and services tax, excise, property or other taxes or levies which Sharkbate is required to collect or remit to the applicable tax authorities

Other Payments Due.

6.12 If there should be any other payments to be made to Sharkbate, such payment shall be made within ten (10) days of the date of invoice. If Merchant is delinquent on a payment of fees for ten (10) days or more, Sharkbate may suspend Merchant’s access to Sharkbate Services. Complaints concerning invoices must be made in writing within seven (7) days from the date of the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Merchant, where additional fees will apply. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods).

Termination

6.13 Sharkbate has the right (but not the obligation) to terminate, suspend, close or limit your Sharkbate account and/or access to Sharkbate services or remove any data or content transmitted via the Software without liability and any license created hereunder may be terminated, suspended, closed or limited by Sharkbate :

(a) if you breach any of the provisions under this Agreement or if you fail to perform any obligation required of you, and such failure is not cured within a period of fourteen (14) day period;

(b) you file a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commence an action providing for relief under bankruptcy laws, file for the appointment of a receiver or is adjudicated a bankrupt;

(d) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Sharkbate shall use commercially reasonable efforts to notify 6 Merchant prior to suspending the access to the Software as permitted under this Agreement;

(e) as otherwise specified in this Agreement;

(f) if you intentionally and/or knowingly use Sharkbate Services to do any of the following:

(i) receive payments directly or indirectly for:

● any sexually oriented or obscene materials or services in violation of Sharkbate’s policy;

● any narcotics, other controlled or illegal substances, steroids or prescription drugs in violation of any laws;

● wagers, gambling debts or gambling winnings, regardless of the location or type of gambling activity;

● any counterfeit products;

● any weapons including firearms, ammunition, high capacity magazines, air guns, explosives;

● any fireworks or pyrotechnic devices or supplies;

(ii) attempt to tamper, hack, modify or otherwise corrupt the security or functionality of Sharkbate Service;

(iii) money laundering activities;

(v) any illegal or immoral activities, including but not limited to such activities that violate the laws of Malaysia.

For the avoidance of doubt, we will not give any refund for termination related to conduct that we determine, in our discretion, violates this Agreement or any applicable law, involves fraud or misuse, or is harmful to our interests or another Merchant.

Information on Sharkbate’s servers and thereby access to the Software will be unavailable to Merchant if there is termination, suspension, closure or limitation applied to your Sharkbate Account. Sharkbate shall use reasonable endeavors to try to give Merchant notice of such termination, suspension, closure or limitation at its sole discretion.

6.14 Termination by Merchant.

This Agreement may be terminated by Merchant on ninety (90) days written notice to Sharkbate. The Termination Fees of RM50 will be charged (“Termination Fees”).

6.15 Effect of Termination.

Upon termination of this Agreement, Merchant shall no longer access the Sharkbate Account, the Software and/or Sharkbate Services and Merchant shall not circumvent any security mechanisms contained therein. Merchant shall also forthwith withdraw any reference to or related forms by Sharkbate and/or Sharkbate Services from its documents and/or websites and shall forthwith cease the use of the Marks.

6.16 Re-active Merchant Account If you wish to revive Sharkbate merchant account, it will be RM 70.00 for re-active account charges.

6.17 Other Remedies.

Termination of this Agreement will not limit either Party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve your obligation to pay all fees that have accrued or are otherwise owed by you under this Agreement.

6.18 Pre-set commission and Transaction Fee ; The commission is pre-set by merchant. The transaction fees charged as below:
a) FPX - RM 1.50 on any transaction that customer made through local supported bank such as Maybank2u or CIMB Clicks, Sharkbate will charge RM 1.50 per transaction, regardless the transaction amount.
b) Credit & Debit Card - The 2.5% Charge (or a minimum charge of RM 1.50 whichever is higher ) is the charges that Sharkbate charge to merchant on every credit / debit card transaction.
6.19 Re-active Merchant Account If you wish to revive Sharkbate merchant account, it will be operational fee of RM 70.00 for re-active account charges.

7. Settlement

7.1 Sales Settlement will be made within 5 working days. The Sales Settlement day will be made twice a week, Thursday & Monday, except Public Holiday. The Settlement Amount will transfer to Merchant Registered Bank Account. If the present settlement day is a federal public holiday or a special holiday where Sharkbate’s office is closed, settlement day shall be the next working day. The next day means anytime between 00:00–23:59. Please note that Merchant can experience a 24-hour delay occasionally due to bank system maintenance.

7.2 Each settlement must value more than RM 100.00 . If not achieve, the amount will be forwarded to the next business cycle day.

7.3 If any changes or update to merchant bank details, the settlement will be made within 5 working days after the merchant details is updated.

7.4 Merchant must provide a valid account name and number a local bank to Sharkbate via dashboard.

7.5 Sharkbate may request for proof of delivery for selected transaction to proceed with the settlement.

7.6 Suspicious transactions are subjected to verification from issuing bank and our payment schedule cycle will not apply for this type of transaction.

7.7 Settlement to merchants with wrong account numbers will be made on the next settlement cycle (5 working days) after the merchant entered
their correct account number. The merchant will then be charged a one-time processing fee of RM15.00.

7.8 Merchant have to remain minimum RM 300.00 as a deposit, otherwise Sharkbate features may be affected and all transactions will be paused
until further clarification.
7.9 Sharkbate has the right to terminate, suspend, close or limit your Sharkbate Account and/or access to Sharkbate services if there is any insufficient balance.

8. Sharkbate’s obligation

8.1 Sharkbate will use its reasonable endeavours to enable its Registered Members the facility for viewing the Sharkbate’s reward program and commerce on the App.

8.2 Sharkbate will use its reasonable endeavors to publish the Merchant’s loyalty reward program or provide other agreed loyalty reward programs Services to the Merchant by the agreed date.

9. Merchant obligations

9.1 The Merchant hereby undertakes and warrants to Sharkbate:

9.1.1 that the Merchant will use all reasonable precautions against access to the App through the portal by any unauthorised persons, including but not limited to the use of usernames and passwords and the securing of information relating to communications between the Merchant and the rest of the App;

9.1.2 that any information supplied by the Merchant is accurate, complete and true;

9.1.3 that the Merchant owns the copyright in or has authorisation from the copyright owner to upload, post, transmit, share, store or otherwise make available to Sharkbate for use on the App any advertisement which contains a name, pictorial representation or logo;

9.1.4 that material uploaded, posted, transmitted, shared or otherwise made available to the App through the portal is free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties;

9.1.5 that each Loyalty Reward program is legal, decent, honest and truthful and complies with all applicable laws, rules, regulations and codes relating to advertising as may be appropriate;

9.1.6 that no Loyalty Reward Offer contains any data, image or other material which;

(a) is offensive, obscene or indecent, or capable of being resolved into obscene or indecent images or material;

(b) is defamatory, threatening or racially, ethnically or otherwise objectionable;

(d) infringes the rights (including, without limitation, the intellectual property rights) of another person;

(e) is designed or likely to cause disruption to any computer system or to any network; or

(f) is illegal or designed or likely to induce an illegal act.

9.2 The Merchant agrees to provide Sharkbate, in such a format as Sharkbate may request, any information, design work, artwork and logos necessary to enable Sharkbate to provide the Services.
9.3 The Merchant confirms and agree to comply with Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) and the Malaysian Anti–Corruption Commission Act 2009 (MACCA)

10. Error or delay

10.1 Sharkbate does not accept liability for any consequences, howsoever arising, due to error or delay in the Service and has the right at its absolute discretion to decline to publish or omit, suspend or change the position of any advertisement accepted by it.

11. Right of Refusal

11.1 Sharkbate reserves the absolute right, without giving any reasons, to decline, cancel or remove any advertisement or provision of the Services for any reason and at any time without prior notice.

12. Reporting Illegal Content

12.1 Sharkbate may, at its absolute discretion and without prior notice, report to the relevant authorities any advertisement or loyalty reward program service used, which in its reasonable opinion is being used for an improper or illegal purpose by the Merchant.

13. Intellectual property

13.1 All intellectual property rights (including future copyright) in the formation and other material appearing on the App vests in and is the exclusive property of Sharkbate, its assigns and licensors. The Merchant may not and must not allow or permit other parties whether or not on the Merchant’s behalf, to copy Merchant loyalty reward programs or other similar activities unless the Business have obtained the prior, written permission of Sharkbate.

13.2 All intellectual property uploaded to the App constitutes an assignment of the intellectual property from the Merchant to Sharkbate.

14. Confidentiality

14.1 Sharkbate retains all property rights in all information and all other knowledge relating to Sharkbate, the Services including the technology and design of the services, the way the Services are implemented, the personnel, policies and business strategies of Sharkbate and the terms of the agreement (including pricing) which come into the Merchant’s possession from any source, or information which is treated by Sharkbate as confidential regardless of its form, or which is designated by its nature as confidential, but excluding information in the public domain or which may be obtained from Sharkbate without restriction (“Confidential Information”).

14.2 The Merchant will not use Confidential Information which the Merchant acquires from Sharkbate for any purpose which may cause Sharkbate loss, whether by way of damage to Sharkbate’ reputation, financial loss, or otherwise.

14.3 The Merchant will keep confidential all information supplied by Sharkbate on is Registered Members.

15. Liability

15.1 While Sharkbate will attempt to verify a Registered Member’s details, it does not guarantee the truth or accuracy of such details. Sharkbate accepts no responsibility or liability as to the suitability of Registered Members who respond to Merchant loyalty reward programs.

15.2 Sharkbate disclaims all liability to the maximum extent permitted by law for liability of any description, including liability for negligence (except for personal injury or death), or any damages or losses (including, but without limitation to indirect or consequential loss, or loss of business, revenue, profits, use or opportunity) howsoever resulting from the Merchant’s use of (or inability to use) the App.

15.3 Sharkbate does not accept liability for:

a) Any loss of copy, artwork, photographs, data or other materials that the Merchant supplies to Sharkbate; or

b) Any mistakes or errors whatsoever that arise during the course of publication of any advertisement or any loss of information or data or any damage thereto in each case as a result of circumstances beyond its reasonable control or which arise as a result of the acts or omissions of the Merchant.

c) Any breaches by the business in regards to any relevant national SPAM and Data Protection acts, including but not limited to; Australia, The SPAM Act 2003, Europe & UK, GDPR (EU) 2016 & Privacy and Electronic Communications (EC Directive) Regulations 2003 and US – CAN-SPAM Act of 2003.

d) To the maximum extent permitted by law, the Merchant agrees to limit the liability of Sharkbate for breach of these Terms and Conditions or any other law or legislation to having the Services supplied again.

16. Warranties

16.1 All warranties, conditions and representations whether express or implied (other than the express warranties stated by Sharkbate in writing) are excluded except in circumstances whereby Sharkbate is by law unable to exclude or limit liability.

16.2 Sharkbate makes no warranty that the App (or any Smartphone application that is, or may become linked to this Smartphone application) is free from computer viruses, “cookies”, or any other malicious or impairing computer programs and/or that the App shall operate uninterrupted and error-free.

16.3 Sharkbate does not warrant that any Loyalty Reward offer placed on the App will attract users from its Registered Members.

16.4 Without limiting the generality of the above, the Merchant warrants that nothing in the material lodged for publication on the App breaches any laws in any State or Territory of Malaysia and the Commonwealth of Malaysia.

17. Relevant law

17.1 These Terms and Conditions are governed by, and must be construed in accordance with the laws of the State of Selangor, Malaysia.

18. Indemnity

18.1 The Merchant agrees to indemnify Sharkbate and its partners, directors, employees and agents against all claims, demands, proceedings and other liability arising wholly or partly, directly or indirectly, for using the App.

18.2 The Merchant indemnifies Sharkbate in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by Sharkbate (including, but not limited to, economic loss and all legal costs and disbursements on a full indemnity basis) caused by the Merchant and/or any wilful, illegal or negligent act or omission by the Merchant.

19. Dispute resolution

19.1 Any dispute under or arising out of this agreement shall be referred to arbitration by a single arbitrator.

19.2 The parties agree and accept that the determination of the arbitration is final and binding.

20. Compliance with foreign law

20.1 Sharkbate makes no representation that the content of the App complies with the law of any country outside Malaysia. Business accesses to Sharkbate platform/service from outside Malaysia is not allowed.

21. Amendments

21.1 Sharkbate may vary these Terms and Conditions from time to time at its absolute discretion.

21.2 If a material change to the Terms and Conditions is made, Sharkbate will notify the Merchant by placing a prominent notice on the portal identifying the change, or by notifying the Merchant of the change via email.

22. Privacy policy

22.1 The Merchant confirms that the Business has read, understood and agrees to be bound by this agreement. Merchant confirms that Merchants customers aware of their rights and agree to Sharkbate’s privacy policy as stated in this policy - https://www.sharkbate.com.my/policy

23. Suspension

23.1 Sharkbate reserves the right to suspend or close the Merchant’s account at its absolute discretion in the event of, but not limited to the events referred to in clause 17 or breaches of these Terms and Conditions.

24. Force Majeure.

24.1 Sharkbate will not be responsible for any delay or failure in performing Sharkbate obligations herein due to an unforeseeable event or causes which are not within our reasonable control (force majeure). Force majeure events shall include without limitation acts of sabotage, fire, natural catastrophes, legislative or regulatory changes or directives, and failure or interruption of utilities such as electricity, telecommunications, internet service providers, banking systems or other third party providers.

25. Language

25.1 In the event of a dispute between the English and non-English versions of this Agreement (if any), the English version shall be the prevailing and governing document.

26. Severance

26.1 If any provision of these Terms and Conditions is held unenforceable in whole or in part, these Terms and Conditions shall continue to be valid as to the other provisions and the remainder of the affected provision.

27. Contact}

In order to resolve a complaint regarding Sharkbate and this agreement or to receive further information regarding use of Sharkbate and this agreement, please contact us at:

SHARKBATE SDN. BHD.
Address:

SHARKBATE SDN. BHD.
Address:
Oasis Square, B-07-02, Jln PJU 1A/7 Persiaran Hulu, Oasis Ara Damansara, 47301 Petaling Jaya, Selangor

Email: [email protected]

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