Terms of service

The term “Services” refers to the iFleet telematics, fleet tracking and management services and support which Digi has agreed to provide to you. Where the context so admits, Services includes the tracker devices which comprise of the positioning and communications equipment to track the vehicle and the SIM card (“Devices”), together with the monitoring platform, associated applications, all hardware and software supplied in connection with the Services and any other related products, add-ons, services and support (collectively, “ancillaries”) which may be requested by you and agreed between us from time to time.

As long as you abide by the Terms of Service, Digi grants to you a non-transferable and nonexclusive limited right to access and use the Services.

Digi shall perform and carry out each of the Services in accordance with the provisions of these Terms. The Parties recognise that changes to the Services and any other provision may be necessary or desired after the date of execution of the Enterprise Services Agreement (“Agreement”) signed between Digi and you. Digi shall be entitled to propose reasonable charges for any agreed changes subject to your confirmation and acceptance of the cost prior to effecting the change.

4.1 The Fees and/or any supply(ies) made by Digi to the Customer under this Agreement are in Ringgit Malaysia and expressed exclusive of Taxes. Digi is entitled to charge Taxes in addition to the Fees and/or any supply(ies) made under this Agreement which shall be borne by the Customer. For the avoidance of doubt, Taxes means any applicable taxes and regulatory charges at the prevailing rate, including but not limited to withholding tax (of any kind and howsoever computed), value added tax, consumption tax, goods and services tax, indirect tax, sales tax, service tax, duties, fees, levies and surcharges (including any fines and penalties), by whatever name called, which may now be or which may be in the future introduced and imposed by the relevant government authorities in Malaysia and/or the Customer’s country of domicile under any law, regulation, directive or guideline thereof including any amendment thereto from time to time. Should any payment made to Digi by the Customer be subject to withholding tax, then such payment shall be grossed up such that Digi shall receive the full amount without deduction of any withholding tax. The Customer shall support Digi in obtaining any tax exemptions and tax relief achievable in connection with the performance of this Agreement, if any, and shall give all such other assistance as may be reasonably required to avoid or redeem any withholding tax. The Customer shall indemnify and keep Digi indemnified against any liability, claim, suit, penalty, fines, impost, loss, fee, cost (including cost on a solicitor and client basis) and expense whatsoever, so incurred and/or suffered by Digi, as a result of non-payment of Taxes.

4.2  Invoices will be issued to you via email on a monthly basis unless otherwise agreed. The payment term is 30 days from the date of invoice. We will be entitled to charge you interest for all late payments at the rate of 10% per annum. You undertake to pay us on time and agree that we shall also be entitled to suspend the Services with or without notice in the event of an overdue account. We may additionally take all other legal action as we deem necessary against you. If the Services are suspended because of your overdue account or for any breach on your part, Digi shall in no event be held accountable or responsible for any losses or damages whatsoever that may arise or which you may suffer.

5.2 You shall notify Digi in writing of your intention whether to renew or terminate the term of your subscription at least sixty (60) days prior to the expiry date. A Customer who continues to renew the Term of the Agreement could retain the same commercial rates on the Renewed Service Term. Nonetheless, other renewal types of the Service are subjected Digi’s absolute discretion. Your subscription will automatically renew on a month-by-month basis upon expiry of the fixed initial term unless and otherwise a written notice is received by Digi. Digi reserves the right to change the Fees during this auto-renewal period.

5.2 You shall notify Digi in writing of your intention whether to renew or terminate the term of your subscription at least sixty (60) days prior to the expiry date. A Customer who continues to renew the Term of the Agreement could retain the same commercial rates on the Renewed Service Term. Nonetheless, other renewal types of the Service are subjected Digi’s absolute discretion.

Your subscription will automatically renew on a month-by-month basis upon expiry of the fixed initial term unless and otherwise a written notice is received by Digi. Digi reserves the right to change the Fees during this auto-renewal period.

THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT ANY DEVICE, HARDWARE, SOFTWARE, CONNECTIVITY OR FEATURE OF THE SERVICES SHALL BE ACCURATE, UP-TO-DATE, ERROR-FREE OR RELIABLE AT ALL TIMES. YOU ACCEPT THAT WE DO NOT REPRESENT OR WARRANT THAT THE DEVICES WILL BE DEFECT FREE, OR THAT THE SERVICES WILL BE UNINTERRUPTED AND AVAILABLE AT ALL OR ANY PARTICULAR TIME OR LOCATION, OR THAT YOUR USE OF THE SERVICES WILL PRODUCE CERTAIN SPECIFIC RESULTS. YOU ARE AWARE AND ACKNOWLEDGE THAT THE SERVICES RELY ON THIRD PARTY TECHNOLOGIES AND FACILITIES INCLUDING SATELLITE TRACKING THAT ARE NOT WITHIN OUR CONTROL. YOU ARE ALSO AWARE OF THE LIMITATIONS AND CHARACTERISTICS OF DIGITAL AND WIRELESS NETWORKS AND THAT DATA MAY BE CORRUPTED, DIVERTED, DELAYED OR LOST DESPITE SECURITY AND OTHER MEASURES TAKEN BY US. YOU AGREE NOT TO HOLD US LIABLE FOR ANY SUCH INCIDENTS OR PERFORMANCE/OPERATIONS FAILURES.

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND WILL ASSUME TOTAL RESPONSIBILITY THEREFOR. YOU WILL RELY ON YOUR OWN REVIEW AND EVALUATION OF THE SERVICES TO ASSESS ITS RELIABILITY AND/OR SUITABILITY FOR YOUR PARTICULAR PURPOSE. YOUR SOLE REMEDY AGAINST US IN THE EVENT OF DISSATISFACTION IS TO CEASE USING THE SERVICES.

Neither Party is liable to the other for any consequential, incidental, indirect, punitive or special damages, including commercial loss and lost profits, howsoever caused and arising under this Agreement. Digi’s total cumulative liability for any and all claims, liabilities, losses or expenses (if any) arising out of or in connection with this Agreement shall not exceed the total amount paid by the Customer to Digi for the Service in the last immediate preceding six (6) months prior to the dispute. Notwithstanding the foregoing, this limitation shall not apply for: (i) death or personal injury caused by either Party’s negligence; (ii) fraud, misrepresentation, corruption and/or willful default; (iii) breaches of confidentiality, intellectual property rights or personal data protection; and (iv) the indemnities given by a Party to the other.

Either Party shall indemnify and hold the other harmless against all claims, costs, damages, losses or liabilities resulting from personal injury or property damage caused by the defaulting Party as a result of a breach or non-observance by the defaulting Party of its covenants, undertakings, warranties and obligations under this Terms of Service.

10.1 Immediate Termination: Digi may terminate this Agreement immediately by written notice in the following circumstances: (a) if it is required by law; (b) if the Customer becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of its creditor(s), enters into receivership, administration or any similar insolvency proceedings; (c) ceases to conduct business in the normal course; or (d) upon occurrence of a Force Majeure Event in respect of all the Services which continues for a period of thirty (30) days. All outstanding Fees or amounts due to Digi shall be payable by the Customer.

10.2 Termination for Cause: Digi may terminate a Service for default or breach of any material term of the particular Service if the Customer fails to remedy the breach within sixty (60) days of Digi’s written notice to remedy the default or breach. In the event if this Agreement is terminated pursuant to this clause, Digi shall have the right to claim for any loss or damages suffered and costs incurred due to the termination and the Customer shall be liable to pay to Digi all outstanding Fees due to Digi including any Termination Fee.

10.3 Termination without Cause: (a) Digi may terminate this Agreement at any time without cause, by written notice to the Customer. Digi shall have the right to claim from the Customer and the Customer shall be liable to pay to Digi all outstanding Fees for the remainder of the Service term or renewed service term; (b) Digi shall have the right to terminate this Agreement without cause by providing sixty (60) days’ prior written notice to the Customer. Where applicable, if the Customer wishes to cancel the Service prior to the Expiry Date, Digi may charge the Customer a Termination Fee as set out in Agreement.

10.4 Consequences of Termination: The Customer shall pay Digi for all Service which has been delivered or rendered to the Customer in accordance with the terms and conditions of this Agreement and the Customer’s rights to use or access to the Service shall cease.

11.1 The Customer acknowledges and agrees that all intellectual property (“IP”) rights in the products and Service including rights in trademarks (registered and unregistered), logos and trade names associated with products and Service belong solely to Digi and/or its licensors. Digi is the sole and exclusive owner of all the product and Service and related technologies, including, without limitation, any hardware designs, firmware, client software, software stack, tools and utilities and any IP rights related to them. The Customer shall make no claims whatsoever to any IP rights of Digi and agrees that it shall not gain any rights to any of Digi’s IP by virtue of this Agreement. The Customer shall not use any of Digi’s IP other than as expressly authorized by Digi. The Customer agrees to indemnify Digi against any losses, whether direct or indirect, for any infringement of Digi’s IP rights attributable to it arising out of this Agreement.

11.2 We reserve the right to reference you as a customer or user of the Service and you hereby expressly authorise and grant to us a non-exclusive, non-transferable, royalty-free licence to use your Marks for this limited purpose.

12.1 Each Party (“Receiving Party”) undertakes to and shall ensure and procure that its employees, agents, representatives, contractors or subcontractors (“Representatives”) keep all information received from either Party (“Disclosing Party”) or disclosed to it pursuant to this Agreement, confidential and shall not disclose such information to any other person or third party during the Service Term or any time thereafter, save where: (i) disclosure is required by law; or (ii) the Disclosing Party had consented to such disclosure in writing (iii) the confidential information is or becomes publicly available or public knowledge other than as a result of a breach of this Agreement by the Receiving Party; (iv) the confidential information is known or available to the Receiving Party before the date the confidential information is provided to the Receiving Party by the Disclosing Party; (v) is received by the Receiving Party without restriction on disclosure or use from a third party lawfully entitled to disclose to the Receiving Party without such restriction; or (vi) has been independently developed without reference or use of any confidential information imparted by the Disclosing Party.

12.2 The Receiving Party shall ensure its Representatives shall use the information received from the Disclosing Party for the sole purpose of performing its obligations under this Agreement. Upon the expiration or termination of this Agreement, the Receiving Party shall destroy or, at the Disclosing Party’s request, promptly return all such confidential information to the Disclosing Party.

13.1 (a) The Parties agree that where pursuant to this Agreement, any personal data are extended: (i) to the Customer and/or processed by the Customer, the Customer agrees not to conduct itself, and to procure that its employees and/or agents, shall not conduct themselves, in such manner as to cause Digi to be in breach of its obligations as a data user as stated in the Personal Data Protection Act 2010; (ii) to Digi by the Customer and/or processed by Digi, the Customer represents that it has obtained all necessary consents as may be required for the processing and transfer of data (including personal data) in relation to the provision of the product and Service herein; and agree that it shall be the responsibility of the Customer to advise Digi in writing should there be any relevant change in the information including the personal data supplied to Digi which requires action on the part of Digi; (b) the Customer agrees to indemnify Digi against all losses, costs, expenses, damages, liabilities, demands, claims, actions and proceedings which Digi may incur arising out of a breach of this Clause by the Customer, its employees or representatives.

Our Privacy Notice may be viewed and accessed here. The Privacy Notice is incorporated into these Terms of Service by this reference. You agree and accept that the Privacy Notice and our privacy policy forms an essential and integral part of these Terms of Service and binds your use of the Services. You consent to our use of personal data in accordance with the terms of our Privacy Notice and all prevailing policies. You accept that we may be required to revise our Privacy Notice and/or policy from time to time. All revisions will be promptly notified through our websites. Your continued use of our Services shall mean that you have agreed and consented to our Privacy Notice and policy as revised.

Each Party expressly warrants and represents to each other that: (i) it has the legal capacity and the requisite authority and corporate power to enter into and perform its obligations under this Agreement; and (ii) the execution and performance of this Agreement complies with all applicable laws, regulations, administrative or judicial decision or policy of the applicable government authority.

16.1 Force Majeure:  Neither Party shall be liable for continuous failure to perform solely caused by force majeure events beyond their reasonable control. Force majeure events include acts of God, pandemic, epidemic, explosion, flood, fire, accident, war, hostilities, invasion, act of foreign enemies, riot, civil commotion or disorder (“Force Majeure Event”). The Party experiencing a Force Majeure Event shall notify the other Party as soon as reasonably possible and shall cooperate in minimising the impact of such Force Majeure Event.

16.2 Remedies: In addition to all other rights and remedies under this Agreement, at law or in equity available to the Parties, each Party shall be entitled to exercise the right of set-off.

16.3 Successors and Assigns:  This Agreement shall be binding upon the permitted assigns, successors-in-title and authorized representatives of each Party.

16.4 Assignment, Novation, Delegation and Subcontracting: Neither Party shall assign or transfer this Agreement or any of its rights or obligations hereunder, or delegate or subcontract the performance of any of its obligations under this Agreement to a third party, save for its affiliates (with written notification), without the other Party’s prior written consent.

16.5 Waivers:  No waiver by either Party of any right or of a breach of any provision of this Agreement shall constitute a waiver of any other right or breach of any other provision, nor shall it be deemed to be a general waiver of such right or provision or to sanction any subsequent breach thereof.

16.6 Modifications or Amendments: No amendment or variation of this Agreement shall bind either Party unless such amendment or variation is agreed to in writing and signed by a duly authorised representative of each Party.

16.7 Severability:  Any term or provision of this Agreement which is held invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions in this Agreement which shall remain in full force and effect.

16.8 Survival: The expiration or termination of this Agreement will not affect accrued rights, indemnities, representations and warranties, existing commitments or any other provisions that by their nature are intended to survive the expiration or termination of this Agreement to the extent consistent with, or necessary to carry out, the purposes thereof.

16.9 Independent Contractor: Nothing in this Agreement shall be construed as creating an agency, partnership or employment relationship between the Parties, it being understood that the Parties are independent contractors vis-à-vis one another.

16.10 Governing Law: This Agreement shall be governed by the laws of Malaysia.

16.11 Counterparts: This Agreement may be signed in any number of counterparts and all such counterparts taken together shall be deemed to constitute one and the same instrument.

16.12 Interpretation: (i) References to business days or working days mean Mondays through Fridays excluding Saturdays, Sundays, national public holidays and state public holidays in the state of Selangor; (ii) Unless otherwise specified, references to clauses, attachments, schedules and annexes mean clauses, attachments, schedules and annexes to this Agreement; (iii) Headings used in this Agreement are inserted for convenience only and shall not be relied on to construe the provisions in this Agreement; (iv) Reference to this Agreement or any other agreement or instrument herein shall mean this Agreement and such other agreement or instrument as amended, modified, varied and/or supplemented from time to time; (v) Where the context so admits or requires, words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (vi) Reference to any statute, legislation or statutory provision shall be a reference to that statute, legislation or statutory provision as amended, modified, extended, re-enacted or replaced from time to time and including all subordinate legislation made under it from time to time; (vii) Where any word or expression is defined in this Agreement, the definition shall extend to all grammatical variations and cognate expressions of the word or expression so defined; (viii) Any technical term not specifically defined in this Agreement shall be construed in accordance with the general practice of those in that profession in Malaysia; (ix) No rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement or any part of it.

16.13 Conflict of Clauses: In the event of conflict between any terms in this Agreement, its attachments, annexes, schedules and any other documents referred to herein, the conflict shall be resolved according to the following order of priority: (i) first – the annexes in this Agreement (including any supplemental letters or addendums thereto) on Service subscribed; (ii) second – this Agreement (excluding the annexes); (iii) third – service registration forms or purchase orders issued for the relevant Service (if any); and (iv) fourth – accompanying documents to the service forms or purchase orders (if any).

16.14 Legal Costs: Each Party shall be liable for their own legal cost and the Parties shall be equally liable for the stamp duty payable for this Agreement.

16.15 Dispute Resolution: In the event of a dispute or disagreement under this Agreement, the Parties shall first attempt to resolve the matter by mutual discussions to achieve an amicable resolution or settlement. Should Parties fail to come to a resolution or settlement within thirty (30) days from the date the dispute or disagreement arose (or such other period as the Parties may mutually agree), the Parties agree to submit the matter for resolution before the exclusive jurisdiction of the courts of Malaysia.

16.16 Prevention of Corruption: The Customer shall fully comply with (i) all applicable anti-corruption laws, regulations and guidelines including but not limited to the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) and the Guidelines on Adequate Procedures issued pursuant to Section 17A(5) of the MACC Act; (ii) Digi’s Anti-Corruption Policy (https://assets.website-files.com/6152b2d34ca06b6d275dd66e/6152b2d34ca06b60855ddd66_Digi-anti-corruption-policy-2020.pdf) ; and (iii) Digi’s Whistleblowing Policy (https://assets.website-files.com/6152b2d34ca06b6d275dd66e/6152b2d34ca06b3c995ddd68_Digi-whistleblowing-policy-2020.pdf) , as amended from time to time. The Customer further agrees to promptly notify and keep Digi notified if any of its owners, directors, managers, employees or agents is being or has been investigated for, or been convicted of, any offences under the MACC Act or any similar legislation governing anti-corruption. Notwithstanding anything to the contrary and without prejudice to any other right available to Digi, Digi shall have sole and absolute discretion to immediately terminate this Agreement without liability for any breach under this clause.

16.17 In the event of a dispute between the English and non-English versions of these Terms of Service (if any), the English version shall be the prevailing and governing version.