SERVICE ENGAGEMENT
TERMS & CONDITIONS
The following terms and conditions shall apply on all services provided by MOBIUZ STUDIO SDN BHD with Business Registration No. of 202401012698 (1558548-D) (hereinafter referred to as “the Company”) of the one part, and the party whose name and description are stated in the invoice or pro-forma invoice (hereinafter referred to as “the Client”) of the other part.
1. FEES AND PAYMENT TERMS
1.1. The Services requested by the Client (“the Services”) and the amount payable for the Services (“the Service Fee”) are as shown in the invoice or pro-forma invoice issued by the Company.
1.2. The Service Fee shall be paid by the Client to the Company within such time as prescribed in the invoice or pro-forma invoice prior to commencement of the Services unless otherwise agreed, or the Client shall be deemed to have cancelled the Services where the Company shall be released from any obligation to perform the Services.
1.3. The Company shall commence the Services upon receipt of the Service Fee in full, unless otherwise agreed by the parties in writing. In any event, the Company will not commence Services until and unless the Client agrees and accepts all terms and conditions herein.
1.4. The Company may, at its discretion, commence work prior to receiving full payment of the Service Fee. In the event that the Service Fee or any part thereof remains unpaid after the due date or by such other date as stipulated by the Company, then notwithstanding other remedies or rights, the Company shall be entitled to impose late payment charges on the overdue payment at the interest of 4% per month to be calculated from the next day of the due date until the date of full and final settlement. For the avoidance of doubt, the payment date of any amount shall be the day when such amount be paid into the Company’s account and/or such day when the Company is entitled to use the amount without any encumbrances whatsoever, whichever that is earlier.
1.5. In the event that any Services is terminated by the Client after the commencement of the Services for any reason whatsoever prior to completion, the Service Fee or any Deposit paid to the Company shall not be refunded to the Client. Any amount paid to the Company shall be non-refundable unless otherwise agreed by the parties in writing.
1.6. The Company may immediately suspend and/or terminate the Services by way of notice in writing to the Client in the event the Client failed to make payment promptly to the Company.
2. MODE OF PAYMENT
2.1. The Service Fee shall be paid in full as per the amount described in the invoice or pro-forma invoice. The Client shall be responsible to pay all taxes and/or other applicable governmental fees as notified by the Company in invoice or pro-forma invoice.
2.2. The Client shall have the option to make payment by way of cheque or online payment to the Company’s account as stipulated in the invoice or pro-forma invoice. Any loss and/or damages that arise due to the error in transmitting the money shall be borne solely by the Client.
2.3. All amount invoiced shall be paid in Ringgit Malaysia (RM) currency only unless otherwise specifically agreed to by the Company. For the avoidance of doubt, any exchange rate loss and/or risk in relation to payments made other than in Ringgit Malaysia (RM) shall at all times be borne solely by the Client.
2.4. The Service Fee and all other payments payable by the Client to the Company including taxes, applicable governmental levies shall be made without any deduction, set- off or counterclaim.
3. DESCRIPTION OF SERVICES
3.1. The Company’s scope of services shall be limited to the Services expressly stated in the invoice or pro-forma invoice only, except otherwise agreed by the Company in writing.
3.2. The Company hereby disclaims all guarantees and/or warranty as to the results and/or outcomes of the Services. None of the representations made by the Company’s employees, agents and/or representative shall be binding upon the Company unless such representations had been otherwise confirmed by the Company in writing. By agreeing to the Services, the Client agrees that the Client is fully responsible for the progress and results of the Services.
3.3. For the avoidance of doubt, any testimony and/or successful results shared to the Client shall not be construed as warranty and/or guarantee provided by the Company in relation to the Services, the prospected profitability and/or return of the Client’s business.
3.4. The Client shall be entitled to subscribe to the Services for lawful purposes only. The Company shall be entitled to terminate the Services immediately without any compensation to the Client should the Company has reasonable grounds to believe that the Client engages in any illegal activities.
3.5. The Client shall undertake the following to enable the Company to perform the Services:-
(a) To cooperate with the Company to provide all necessary information, permission and/or consents; AND
(b) To comply with any requirements which may be applicable for the Company to perform the Services.
3.6. The Company will provide the Client with an opportunity to review the appearance and content of the project during the development phase and once the overall project development is completed. At the completion of the project, such materials will be deemed to be accepted and approved unless the Client notifies the Company otherwise within 10 days of the date the materials are made available to the Client.
3.7. Any request out of the scope proposed in this quotation will be treated as Change of Request (CR). Additional charges will be applied according to prevailing rates as stipulated by the Company. Any such charges will be invoiced separately and shall be in addition to any previously agreed upon amounts or quotes.
3.8. The Client shall be liable for all costs and expenses incurred in the event of any non-compliance with the clause above.
4. INDEPENDENT CONTRACTOR STATUS
4.1. The Company is an independent contractor, and neither the Company nor Company’s employees or contract personnel are, or shall be deemed, Client's employees. In its capacity as an independent contractor, The Company agrees and represents, and Client agrees, as follows:-
(a) The Company has the right to perform Services for others during the term in which the Services are being performed.
(b) The Company has the sole right to control and direct the means, manner, and method by which the Services required by these defined terms will be performed. The Company shall select the routes taken, starting and quitting times, days of work, and order the work is performed.
(c) The Company has the right to hire assistants as subcontractors or to use employees to provide the Services required by these terms of service.
(d) Neither the Company nor the Company’s employees or contract personnel shall be required to wear any uniforms provided by the Client.
(e) The Services required by these terms of service shall be performed by the Company, the Company’s employees, or contract personnel.
(f) Neither the Company nor the Company’s employees or contract personnel shall be required by the Client to devote full time to the performance of the Services required by these terms of service.
5. NON-SOLICITATION AND NON-CIRCUMVENTION
5.1. The Client agrees not to solicit or attempt to solicit any of the Company's employees or subcontractors to leave their employment or subcontracting relationship for any reason during the term in which the Services are being performed and for a period of one (1) year following the termination or completion of these terms of service. The Client shall not induce, encourage, or solicit any employee or subcontractor of the Company to leave the Company's employment or engagement, or to work for or provide services to any other entity or individual.
5.2. The Client agrees not to circumvent the Company by directly or indirectly contacting or doing business with any of the Company's employees or subcontractors outside the scope of these terms of service during the term in which the Services are being performed and for a period of one (1) year following the termination or completion of these terms of service.
5.3. In the event of a breach of any of the above clauses by the Client, the Company shall be entitled to seek injunctive relief, damages, or any other appropriate remedy available at law or in equity.
6. RISK & LOSS
6.1. The Client acknowledges that creative production strategies and business in general terms is an ongoing process of trial and error, and that the success of the business cannot be guaranteed solely through creative production efforts. The Company shall make reasonable efforts to advise the Client on effective creative strategies, but shall not be responsible for any loss incurred by the Client as a result of market fluctuations, unforeseen circumstances, or other factors beyond the control of the Company, in which all these above-mentioned may result in substantial loss to the Client, and that the Client is financially willing and able to sustain such loss. The Client accepts the financial risks associated with implementing various creative production strategies, approaches or campaigns, and agrees not to hold the Company responsible for any losses incurred.
6.2. The Company assumes no responsibility under these terms of service other than to provide the services called for herein in good faith, and it shall not be responsible for any action of the Client in following or declining to follow any advice or recommendations of the Company.
6.3. The Client hereby states that he/she has read these terms of service in its entirety and acknowledges that the Company is a corporate entity and no other warranties or representations or promises have been made by individuals acting on behalf of the Company or by themselves to induce execution of these terms of service.
7. FORCE MAJEURE
7.1. Neither Party shall be in breach of its obligation under these terms of service if it is unable to perform its obligation under these terms of service (or any part of them), other than payment obligations, as a result of the occurrence of any circumstances beyond reasonable control, i.e. events of force majeure, which include but not limited to:-
(a) Act of God;
(b) War (whether declared or not), civil commotion, riot and curfew;
(c) insurrection, revolution, rebellion, military or usurped power, civil war or acts of terrorism;
(d) Changes in laws, regulations and/or policies resulting in the inability or delay in delivering any services.
7.2. If an event of force majeure occurs by reason of which either Party is unable to perform any of its obligation under these terms of service (or any part thereof), the Party shall inform the other Party immediately of the occurrence of that event of force majeure with full particulars thereof and the consequences thereof and both Parties shall be entitled to reasonable extension of time.
8. LIABILITY OF THE COMPANY
8.1. The Client shall notify the Company in writing of any error and/or discrepancies arising out of or in connection with the Services provided/performed by the Company within fourteen (14) days from the performance of the Services.
8.2. The failure of the Client to notify the Company of any dispute, controversy or claim within the time period prescribed shall constitute acceptance and/or waiver by the Client of all claims in respect of such Services.
8.3. The Client hereby agrees that the Company’s liability in the event of any breach of the Company of the terms and conditions herein, if any, shall not exceed the actual amount paid by the Client to the Company for the Services involved in such claim. The Client expressly agrees that the maximum amount that can be claimed against the Company pursuant to the terms and conditions herein shall be the total Service Fee paid by the Client in relation to the dispute. The foregoing shall constitute the sole remedy of the Client and the sole liability of the Company in respect of the provision of the Services.
8.4. The Company hereby disclaim any warranty and/or condition whether express or implied by conducts and/or by law in relation to the Services to the fullest extent permissible by law.
8.5. The Client shall indemnify the Company against all claims that arise due to the Client, including any claim of infringement of third party’s intellectual property’s right.
8.6. The Client shall refer any dispute, controversy or claim arising out of or relating to this terms and conditions or the breach, termination, or invalidity thereof to the Company for amicable resolution first prior to the commencement of any formal claim by way of legal proceedings. The parties agree to use their reasonable endeavours to promptly resolve any dispute within thirty (30) days from the day that the dispute is lodged with the Company.
9. MISCELLANEOUS
9.1. The Company is entitled to terminate the Services immediately by way of notice in writing to the Client in the following event: -
(a) The Client commits a material breach of the terms and conditions herein, which the Client has failed and/or refused to remedy the same OR which is incapable of remedy.
(b) The Client ceases to carry on business.
(c) The Client is wound up and/or declared insolvent; or(d) Any change of circumstances which render it impossible for the Company to provide the Services.
9.2. Without prejudice to any other remedies entitled by the Company, any outstanding amount for the Services shall become immediately due and payable upon the termination of the Services, including without limitation pursuant to clause 9.1 above, unless otherwise agreed by the Company.
9.3. Any intellectual property rights arising from the performance of the terms and conditions and/or the Services shall be owned by the Company’s whereby the Client shall be a co-owner, subject always to the full and final payment of all Service Fee due.
9.4. The Company’s waiver of any provision herein or any breach thereof, shall not constitute a waiver of any subsequent breach thereof, nor of any other provision herein.
9.5. The Client grants the Company perpetual and irrevocable rights to use the Client’s name and/or logo, creative content, description of services performed, samples of Deliverables, testimonials and quotes, and campaign results for the purpose of promoting and marketing of the Company’s services and/or as portfolio display.
9.6. Nothing in these terms and conditions shall prejudice any condition or warranty, express or implied, or any legal remedy to which the Company may be entitled in relation to the Services, by virtue of any statute law or regulation.
9.7. The Company shall provide the Services to the Client under these terms of service as an independent contractor and that the relationship between the Parties shall not constitute a partnership, joint venture or agency.
9.8. None of these terms and conditions may be added to, modified, superseded or otherwise altered unless agreed in writing by the Company.
9.9. The terms and conditions herein shall be governed by and construed in accordance with the laws in force in Malaysia. The courts of Malaysia shall have exclusive jurisdiction to hear and determine all claim, dispute or matter arising hereunder or in connection with the terms and conditions contained herein.
9.10. These terms and conditions herein shall be confidential and shall not be disclosed except for lawful purposes and with the prior written consent of the Company.
9.11. The Client shall submit a copy of a valid certificate of business registration, certificate of incorporation (Section 17 of Companies Act 2016, previously known as Form 9) and/or any valid proof of incorporation issued by the relevant authority upon execution herein, failing which the Company shall be entitled to reject the Client’s request for Services.
9.12. The Client hereby expressly consents for the Company to use the personal data of the Clients for the Services in accordance with the Company’s privacy policy and Personal Data Protection Act 2010.
10. REQUEST FOR SERVICES
10.1. The Client agrees that this document shall constitute the Client’s request for Services as per all the terms and conditions above which is subject to the Company’s acceptance and/or approval at the sole discretion of the Company.
10.2. The Client understands and agrees to accept and to be bound by all the above terms and conditions where a valid contract shall be formed between the Company and the Client for the provision of the Services, subject to the terms and conditions above and/or such further and/or amended terms as agreed in writing upon the Company’s acceptance of the Client’s request for Services herein.
11. ENTIRETY OF AGREEMENT
11.1. These terms of service constitutes the only agreement between the Parties hereto with respect to any and all subject matters hereof and shall wholly cancel and supersede all previous negotiations, understandings and arrangements, made whether orally or in writing, with respect to the subject matter hereof. The Parties hereto warrant that no other arrangement, award or understanding than these terms of service are in existence as of the date hereof.