Semmel Customer Agreement

Last updated on 20 December 2023

This Semmel Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Services (as defined below) and is an agreement between Semmel Health Sdn Bhd (also referred to as “Semmel,” “we,” “us,” or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts and you are entering into this Agreement for the entity that you work for, you represent to us that you have legal authority to bind that entity.

  1. INTERPRETATION
    1. Definitions:  In the Agreement, the following terms have the stated meaning:
      • Confidential Information: the terms of the Agreement and any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the Agreement.  Semmel’s Confidential Information includes Intellectual Property owned by us (or our licensors).  The Client’s Confidential Information includes the Content.
      • Content: the Content that you or any Permitted User transfers to us for processing, storage or hosting by the Services in connection with your account and any computational results that you or any Permitted User derive from the foregoing through their use of the Services. Your Content does not include Account Information. 
      • Effective Date: the Service start date as set out in the Client’s invoice.
      • Force Majeure: an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care or a lack of funds for any reason.
      • Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, system design, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.  Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
      • Invoice: a bill to the Client listing the subscribed Services with a statement of the sum due, payment due date and Effective Date.
      • Objectionable: includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
      • Payment Terms: the payment terms as set out in the Client’s Invoice.
      • Permitted Users: those personnel of the Client who are authorised to access and use the Services on the Client’s behalf in accordance with Clause 3.3.8.
      • Service Fees: the fees set out in the Invoice, as updated from time to time in accordance with Clause 5.4.
      • Service or Services: means each of the services made available by us and listed in our Invoice to you.
      • Site: the internet site with the domain “semmelhealth.com” and any successor or related locations designated by us) as may be updated by us from time to time.
      • Software: any software included in the Services or Semmel Content.
      • Underlying Systems: the IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
      • Year: a 12 month period starting on the Effective Date or the anniversary of that date.
      • Interpretation:  In the Agreement:
        1. clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
        2. words in the singular include the plural and vice versa; 
        3. a reference to:
          1. a party to the Agreement includes that party’s permitted assigns; 
          2. personnel includes officers, employees, contractors and agents, but a reference to the Client’s personnel does not include Semmel;
          3. a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
          4. including and similar words do not imply any limit; and 
          5. a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
  2. SEMMEL RESPOINSIBILITIES
    1. General:  Semmel must use reasonable efforts to provide the Services in accordance with the Agreement, exercising reasonable care, skill and diligence and using suitably skilled, experienced and qualified personnel.
    2. Availability:
      1. Subject to Clause 1.2.2, Semmel will use reasonable efforts to ensure each Service subscribed by the Client is available on a 24/7 basis.  However, it is possible that on occasions a Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.  We will use reasonable efforts to publish on the Semmel Site and/or notify the Client by email advance details of any unavailability.
      2. Through the use of web services and APIs, the Service interoperates with a range of third party service features.  Semmel does not make any warranty or representation on the availability of those features.  Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to the Client.  To avoid doubt, if we exercise our right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.
    3. Data Privacy. Your Content is stored in Amazon Web Services (AWS). You consent to the storage of Your Content in, and transfer of Your Content into, AWS. We will not access or use Your Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body. We will not disclose Your Content to any government or third party except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 2.3. We will only use your Account Information in accordance with the Privacy Notice, and you consent to such usage. The Privacy Notice does not apply to Your Content.
  3. CLIENT OBLIGATIONS
    1. Your Account. You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Services. To access the Services, you must have an account issued by us.  You are responsible for all activities that occur under your account, regardless of whether the activities are authorised by you or undertaken by you, your employees or a third party (including your contractors, agents or Permitted Users), and we and our affiliates are not responsible for unauthorised access to your account.
    2. General use:  The Client and its personnel must use the Services in accordance with the Agreement solely for the Client’s own internal business purposes, lawful purposes; and not resell or make available the Services to any third party, or otherwise commercially exploit the Services.
    3. Access conditions:  When accessing the Service, the Client and its personnel must:
      1. not impersonate another person or misrepresent authorisation to act on behalf of others or Semmel;
      2. correctly identify the sender of all electronic transmissions;
      3. not attempt to undermine the security or integrity of the Underlying Systems; 
      4. not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
      5. not attempt to view, access or copy any material or data other than that which the Client is authorised to access; and to the extent necessary for the Client and its personnel to use the Service in accordance with the Agreement;
      6. neither use the Service in a manner, nor transmit, input or store any of Your Content that breaches any third party right (including Intellectual Property rights and privacy rights) or is Objectionable, incorrect or misleading; and
      7. comply with any terms of use published on the Semmel Site, as updated from time to time by Semmel.
      8. Personnel. A breach of any term of the Agreement by the Client’s personnel or Permitted Users is deemed to be a breach of the Agreement by the Client.
      9. Authorisations. The Client is responsible for procuring all licences, authorisations and consents required for it and its personnel to use the Services, including to use, store and input Your Content into, and process and distribute Your Content through, the Services. 
  4. YOUR CONTENT 
    1. Semmel access to Your Content:  
      1. The Client acknowledges that:
        1. Semmel may require access to Your Content to exercise its rights and perform its obligations under the Agreement; and
        2. to the extent that this is necessary but subject to Clause 7, we may authorise a member or members of our personnel to access the Content for this purpose. 
      2. The Client must arrange all consents and approvals that are necessary for us to access the Content as described in clause 4.1.1.
    2. Analytical Data:  The Client acknowledges and agrees that:
      1. Semmel may use Your Content to generate anonymised and aggregated statistical and analytical data (Analytical Data) and use the Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights;
      2. Semmel’s rights under clause 4.2.1 above will survive termination or expiry of the Agreement; and
      3. title to, and all Intellectual Property Rights in the Analytical Data is and remains Semmel’s property.
    3. Agent:
      1. The Client acknowledges and agrees that to the extent that Your Content contains Personal Information, in collecting, holding and processing that information through the Services, Semmel is acting as an agent of the Client of any applicable privacy law.
      2. The Client must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with the Agreement.
    4. Backups of Content:  Semmel maintains backup of the Service platform for disaster recovery purposes only.  Semmel makes no guarantee of the restorability of data relating to Service if Your Content is lost, regardless of cause.  Semmel is not liable for the loss of any of Your Content, nor does it guarantee recoverability of Your Content that is deleted (accidentally or purposefully) by Client and its users.  Additional fees may apply for recovery of specific data of Your Content and we will work on these requests on a best effort basis.
    5. Indemnity:  The Client indemnifies Semmel against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Semmel’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any of Your Content infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that Your Content is Objectionable, incorrect or misleading.
  5. SERVICE FEE
    1. Service Fee:  The Client must pay Semmel the Service Fee.
    2. Invoicing and payment:
      1. We will provide the Client with valid tax invoices.
      2. The Client must pay the Service Fee:
        1. on the dates set out in the Payment Terms, or if there are none, by the 20th of the month following the date of invoice; and
        2. electronically in cleared funds without any set off or deduction.
      3. The Service Fee exclude any applicable taxes, which the Client must pay on taxable supplies under the Agreement.
      4. All fees paid are non-refundable.
    3. Overdue amounts:  Semmel may charge interest on overdue amounts.  Interest will be calculated from the due date to the date of payment (both inclusive) at a rate of 1.5% per month.
    4. Increases:
      1. Semmel is entitled to increase the Service Fee by up to 10% as a maximum once in any 12-month period and shall notify Client of any such price increases.
      2. If the Client does not wish to pay the increased Service Fee, it may terminate the Agreement on no less than 30 days’ notice, provided the notice is received by Semmel before the effective date of the Fee increase.  If the Client does not terminate the Agreement in accordance with this clause, it is deemed to have accepted the increased Service Fee.
  6. INTELLECTUAL PROPERTY 
    1. Ownership:
      1. Subject to clause 6.1.2, title to, and all Intellectual Property Rights in, the Services, Semmel Site, and all Underlying Systems is and remains the property of Semmel (and its licensors).  The Client must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
      2. Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software; use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.  With respect to any Software that is distributed or provided to Client for use on Client premises or devices, Company hereby grants Client a non-exclusive, non-transferable, non sub licensable licence to use such Software during the Term only in connection with the Services.   
      3. Title to, and all Intellectual Property Rights in, Your Content remains the property of the Client.  The Client grants Semmel a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate Your Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with the Agreement. 
    2. Know-how:  To the extent not owned by us, the Client grants Semmel a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us in the provision of the Services.
    3. Feedback:  If the Client provides Semmel with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):
      1. all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Semmel; and
      2. Semmel may use or disclose the feedback for any purpose.
    4. Third party Intellectual Property Rights indemnity:
      1. Semmel indemnifies the Client against any claim or proceeding brought against the Client to the extent that claim or proceeding alleges that the Client’s use of the Service in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim).  The indemnity is subject to the Client:
        1. promptly notifying us in writing of the IP Claim; 
        2. making no admission of liability and not otherwise prejudicing or settling the IP Claim, without Semmel’s prior written consent; and
        3. giving us complete authority and information required for us to conduct and/or settle the negotiations and litigation relating to the IP Claim.  The costs incurred or recovered are for Semmel’s account.
      2. The indemnity in clause 6.4.1 does not apply to the extent that an IP Claim arises from or in connection with:
        1. the Client’s breach of the Agreement;
        2. use of the Service in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by Semmel; or
        3. any third party data or any of Your Content.
      3. If at any time an IP Claim is made, or in Semmel’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, we may (at our option):
        1. obtain for the Client the right to continue using the items which are the subject of the IP Claim; or
        2. modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.
  7. Confidentiality
    1. Security:  Each party must, unless it has the prior written consent of the other party:
      1. keep confidential at all times the Confidential Information of the other party; 
      2. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
      3. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of clauses 7.1.1 and 7.1.2.
    2. Permitted disclosure:  The obligation of confidentiality in clause 7.1 does not apply to any disclosure or use of Confidential Information:
      1. for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
      2. required by law (including under the rules of any stock exchange);
      3. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
      4. which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality; or
      5. by Semmel if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 7.
  8. DISCLAIMERS
    1. THE SERVICES AND SEMMEL CONTENT ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR AWS CONTENT OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR SEMMEL CONTENT OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED. 
    2. Limitation of remedies:  Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement.  However, the liability of Semmel for any breach of that condition or warranty is limited, at Semmel’s option, to:
      1. supplying the Services again; and/or
      2. terminate the services and pay the Client the balance of unused fee paid to us.
  9. LIMITATIONS OF LIABILITY
    1. Maximum liability:  The maximum aggregate liability of Semmel under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by the Client under the Agreement in the previous year/month (which in the first Year is deemed to be the total Fees paid by the Client from the Effective Date to the date of the first event giving rise to liability).  The cap in this clause 9.1 includes the cap set out in clause 8.2.
    2. Unrecoverable loss:  Neither party is liable to the other under or in connection with the Agreement or the Services for any:
      1. loss of profit, revenue, savings, business, use, data (including Content), and/or goodwill; or
      2. consequential, indirect, incidental or special damage or loss of any kind.
    3. No liability for other’s failure:  Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
    4. Mitigation:  Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
  10. TERM, TERMINATION AND SUSPENSION
    1. Duration:  The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 10.
    2. No fault termination:  Either party may terminate the Agreement on the anniversary of the Effective Date by giving at least 3 months’ notice prior to that anniversary date. 
    3. Other Termination rights:  
      1. Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
        1. breaches any material provision of the Agreement and the breach is not:
          1. remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
          2. capable of being remedied;
        2. becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
        3. is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
    4. Consequences of termination or expiry:
      1. Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
      2. On termination or expiry of the Agreement, the Client must pay all Service Fees for Services provided prior to that termination or expiry.
      3. Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement and subject to clause 10.4.4, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.  
      4. At any time prior to one month before the date of termination or expiry, the Client may request:
        1. a copy of Your Content stored using the Service, provided that the Client pays Semmel’s costs of providing that copy at the current prevailing daily man hour rate.  On receipt of that request, Semmel must provide a copy of Your Content in a common electronic form.  Semmel does not warrant that the format of Your Content will be compatible with any software; and/or
        2. deletion of Your Content stored using the Service, in which case Semmel must use reasonable efforts to promptly delete that Your Content.
        3. To avoid doubt, Semmel is not required to comply with clause 10.4.4.2 to the extent that you previously requested deletion of Your Content.
    5. Obligations continuing:  Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 6, 7, 9, 10.4, 10.5 and 11, continue in force.   
    6. Rights to restrict:  Without limiting any other right or remedy available to Semmel, we may restrict or suspend your access to the Service and/or delete, edit or remove the part of Your Content it deemed relevant if we consider that you (including any of your personnel) has:
      1. undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
      2. used, or attempted to use, the Service:
        1. for improper purposes; or
        2. in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service; 
      3. transmitted, inputted or stored any of Your Content that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
      4. otherwise materially breached the Agreement.
    7. Process:
      1. Semmel must notify the Client where it restricts or suspends the Client’s access, or deletes, edits or removes Your Content, under clause 10.6.
      2. Clause 10.4.4.1 will not apply to the extent that it relates to Your Content deleted or removed under clause 10.6.
  11. DISPUTES
    1. Good faith negotiations:  Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
    2. Obligations continue:  Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
    3. Right to seek relief:  This Clause 11 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
  12. GENERAL 
    1. Force Majeure:  Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
      1. immediately notifies the other party and provides full information about the Force Majeure;
      2. uses best efforts to overcome the Force Majeure; and
      3. continues to perform its obligations to the extent practicable.
    2. Rights of third parties:  No person other than Semmel and the Client has any right to a benefit under, or to enforce, the Agreement.
    3. Waiver:  To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
    4. Independent contractor:  Subject to clause 4.3, Semmel is an independent contractor of the Client, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
    5. Notices:  A notice given by a party under the Agreement must be delivered to the other party via email using the email address set out in Invoice.
    6. Severability:
      1. If any provision of the Agreement is, or becomes, illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity.
      2. If modification under clause 12.6.1 is not possible, the provision must be treated for all purposes as severed from the Agreement without affecting the legality, enforceability or validity of the remaining provisions of the Agreement.
    7. Variation:  Subject to clause 5.4, any variation to the Agreement must be in writing and signed by both parties.
    8. Entire agreement:  The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Effective Date.  The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Effective Date.
    9. Subcontracting and assignment:
      1. The Client may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of Semmel, that consent not to be unreasonably withheld.  The Client remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer.  Any assignment, novation, subcontracting or transfer must be in writing.
      2. Any change of control of the Client is deemed to be an assignment.  In this clause change of control means any transfer of shares or other arrangement affecting the Client or any member of its group which results in a change in the effective control of the Client.
    10. Law:  The Agreement is governed by, and must be interpreted in accordance with, the laws of Malaysia.  Each party submits to the non-exclusive jurisdiction of the Courts of Malaysia in relation to any dispute connected with the Agreement.
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