The terms and conditions of this Agreement govern your access to and use of the services (“Services”) provided by FiveTies Sdn. Bhd. (Company Registration No.: 201901010333 (1319661-U)) at 21-A Jalan SS 21/56B, Damansara Utama, 47400 Petaling Jaya, Selangor (“FiveTies”, “We”, “Our” or “Us”), a Malaysian entity, either itself or through its subsidiaries, licensees or related companies, via various electronic portals such as fiveties.com or mobile application (“Portal”).
By accessing and/or using the Portal, you are indicating that you have read, understand and agree to be bound by the terms and conditions herein. If you do not agree with its terms, do not use this Portal.
- The Services
- Our Services are provided through the Portal and includes the services set out in the subparagraph below.
- The Services include the service of recording and uploading of Content to be processed by us (“Memories”) to such nominated person(s) to access after the user passes away.
- You acknowledge that the Memories is not and cannot form a will or a trust. Please seek professional advice to prepare a will or to set up a trust.
- To fully access or use the Services in the Portal, you are required to have a user account on the Portal (“Account”)
- You are responsible for providing and keeping registration information up-to-date and must provide changes promptly to FiveTies by logging in to your Account and providing the correct information to FiveTies. Failure to do so shall constitute a breach of the terms and condition of this Agreement, which may result in immediate termination of your Account.
- You shall be responsible for maintaining the confidentiality of your password. We may treat all activities conducted with the password as activities conducted by the holder of the password.
- Unless specifically stated otherwise, your Account is personal to you and cannot be shared with third parties or transferred to third parties.
- Use of the Portal
- We do not represent or warrant that:-
You shall be responsible for maintaining the confidentiality of your password. We may treat all activities conducted with the password as activities conducted by the holder of the password.
- access to the Portal or any part of it, will be uninterrupted, reliable or fault-free; or
- the Portal or any of its contents will be accurate, complete or reliable.
- “Content” means information, images, pictures, data, text, music, sound, photographs, graphics, video, voice, messages or other materials.
- You understand that all Content, whether publicly posted or privately transmitted, is the exclusive work and property of the person from whom such Content originated.
- We do not claim any permanent ownership of your Content. You retain copyright and any other rights you already hold in Content which you submit, post, upload or display on or through the Portal. When you submit, post, upload or display Content, you grant us a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license (and sub-licensable) to use, exploit and archive the Content in accordance with or as reasonably contemplated by this Agreement.
- When you post, submit, or upload Content on the Portal you represent and warrant that:-
- you own all copyright in the Content, or if you are not the owner, that you have permission to use the Content, and that you have the right to display and reproduce the Content via the Portal. You license us to use and sub-license the Content in accordance with this Agreement;
- you and your Content do not and will not infringe the intellectual property rights or other rights of any person or entity, including copyright, moral rights, trade mark, patent or right of privacy;
- you or your Content, and your use, storage, reproduction and display on the Portal will comply with all applicable law, rules and regulations;
- your Content does not breach any of this Agreement; and
- your Content is not misleading and deceptive.
- You must be 18 years old and above to use our Services. Until further notice, our Services are only available to Malaysians citizens.
- As a paid subscriber, you will be granted access to additional features of the Portal. Such feature includes the services set out in paragraph 1.2 above. We may add or remove any features from time to time without notice but we will not deviate from the services set out in paragraph 1.2 above.
- The access to the Memories by you or nominated person(s) will be terminated upon the expiry or termination of your subscription. As a free user, you may use such limited features provided by us. However, we do not undertake to process your Memories at any time and may delete the same anytime.
- You may cancel your Account (i.e. delete all memories and memories will no longer be sent to your ties upon your passing, and delete all user data collected as you signed in using social media platforms) at any time by contacting us in writing at email@example.com. However, no refund will be granted for cancellation of confirmed purchase(s).
- All successful transactions made within the Portal is strictly non-returnable and non-refundable.
- You acknowledge that as part of our Services, your Memories will be disclosed to your nominated person(s) upon your demise. We have no control over what your nominated person(s) will do with your Memories after disclosure.
- We would only know whether you had passed on when we are informed by the nominated person(s), i.e. your “Ties”, which may include but not limited to nominated person(s) submitting your death certificate. Your Memories will be released once the nominated person(s) fulfils all internal requirements set out by us. We are not liable for any disclosure of Memories which had been wrongfully obtained by compromising the internal requirements due to your fault or the fault of the nominated person(s).
- You hereby agree that we are not required to disclose any Memories to any third party other than the nominated person(s) unless we are required to do so by law, or authorities or Court order any countries. You hereby agree that we have the sole discretion to decide whether to disclose the Memories or any information in your Account when we are served with a Court order or directed by any authorities of any countries.
- You will not disclose, misuse or use our Confidential Information.
- “Confidential Information” means any information disclosed or made available to you by us, directly or indirectly, whether in writing, orally or visually. It includes but is not limited to all information contained within our reporting systems and other performance metrics, any other technical or programming information and including personal data information about third parties we disclose or make available to you.
- However, Confidential Information does not include information other than information that:-
You acknowledge, consent and agree that we may access, preserve and disclose your Account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service; or (v) protect our rights, property or personal safety, our users and the public.
Limitations of Liability
- is or becomes publicly known and generally available other than through your action or inaction; or
- was already in your possession (as documented by written records) without confidentiality restrictions before you received it from us.
- You expressly agree that we, our directors, officers, shareholders, employees, representatives, consultants, agents, subsidiaries, suppliers, and/or distributors will not be liable for any loss of profits, data or costs of procurement of substitute goods or services, or for any other indirect, special, incidental, punitive, consequential damages arising out of or in connection with this Agreement or other intangible losses, however caused, and under whatever cause of action or theory of liability brought, even if we have been advised of the possibility of such damages, resulting from:-
“Confidential Information” means any information disclosed or made available to you by us, directly or indirectly, whether in writing, orally or visually. It includes but is not limited to all information contained within our reporting systems and other performance metrics, any other technical or programming information and including personal data information about third parties we disclose or make available to you.
You acknowledge that we may not be able to confirm the identity of other registered users or prevent them acting under false pretences or in a manner that infringes the rights of any person.
You must ensure that your access to the Portal and/or our services is not illegal or prohibited by laws that apply to you.
You must take your own precautions to ensure that the process that you employ for accessing the Portal and our service does not expose you to the risk of viruses, malicious computer code or other forms of interference which may damage your own computer system. We do not accept responsibility for any interference or damage to any computer system that arises in connection with your use of the Portal or any linked website.
- your access to or use of or inability to access or use the Portal;
- any conduct or content of any third party on the Portal, including without limitation, any defamatory, fraudulent, misleading, offensive or illegal conduct of other users or third parties;
- any Content obtained from the Portal; and
- unauthorised access, use or alteration of your transmissions or Content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
Our Intellectual Property Rights
- If you have a dispute with one or more third party through the use of the Portal, you release us (and our directors, officers, shareholders, employees, consultants, agents, subsidiaries and joint ventures) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
- You acknowledge that we own all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Portal, and that you will not acquire any rights, titles, or interests in or to the Portal except as expressly set forth in this Agreement.
- You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any of our services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Portal or proprietary information related thereto.
- You will not remove, obscure, or alter our copyright notice, or other proprietary rights notices affixed to or contained in the Portal.
- “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trade mark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
- The use of the Portal is subject to our guidelines. You shall not use, allow, or enable others to use the Portal, or knowingly condone use of the Portal by others, in any manner that is, attempts to, or is likely to:
We reserve the right, in our sole discretion, to reject, edit or refuse to post any Content and/or to remove any Content from the Portal, whether or not the Content is expressly prohibited by this Agreement, or to restrict, suspend, or terminate your access to all or any part of our services at any time, for any or no reason, with or without prior notice, and without liability.
You agree to adhere to our guidelines and if you fail to do so, we reserve our right to suspend or terminate your Account or this Agreement. We also reserve our rights to introduce, change or amend our guidelines from time to time.
- use any proxy internet protocol addresses (IPs) in order to attempt to hide the use of multiple accounts, disrupt any of our services or to avoid being detected;
- be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit or sexually suggestive, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else;
- post or deliver any expressions that lead to discrimination by race, national origin, creed, sex, social status, family origin, etc., or any expressions that induce or encourage suicide, self-injury behavior, or drug abuse;
- affect us adversely or reflect negatively on us, the Portal, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person from using all or any portion, features or functions of the Portal, or from advertising, linking or becoming a supplier to us in connection with the Portal;
- send or result in the transmission of junk emails, chain letters, duplicative or unsolicited messages, or so-called “spamming” and “phishing”
- transmit, distribute or upload programs or materials that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horses, spyware, or other potentially harmful programs or other material or information;
- violate any laws, regulations, judicial or governmental order, any treaties or violate or infringe upon any Intellectual Property Rights, rights of publicity or privacy, or any other rights of ours or of any other person;
- gain unauthorised access to the Portal, other users’ accounts, names, passwords, personally identifiable information or other computers, websites or pages, connected or linked to the Portal, or to use the Portal in any manner which violates or is inconsistent with the terms and conditions of this Agreement;
- modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of the Portal or the rights or use and enjoyment of the Portal by any other person;
- collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, in connection with their or your use of the Portal, unless you have obtained the express, prior permission of such other person to do so;
- “stalk” or otherwise harass another;
- interfere with other users’ posts;
- circumvent or manipulate our fee structure, the billing process, or fees owed to us;
- post or provide false, inaccurate, misleading, incomplete, defamatory or libelous Content, or any fake news or information or any materials without proof or evidence;
- transfer your Account and user identification to another party without our consent;
- copy, modify, or distribute (i) content from any websites; or (ii) any of our copyright or trade marks;
- harvest or otherwise collect information about users, including email addresses, without their consent;
- forge headers, icons or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Portal; or
- upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements).
Third Party Sites
- As part of the service provided, we will send emails to notify you on the on-going activities on the Portal or to inform you about new products or services provided by us. You may unsubscribe by contacting us at firstname.lastname@example.org.
Term & Suspension or Termination of Account
- This Portal may contain links to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”) as a service to those interested in this information. You use links to Third-Party Sites, and any Third-Party Content therein, at your own risk. We do not monitor or have any control over, and make no claim or representation regarding Third-Party Content or Third-Party Sites. We provide these links only as a convenience, and a link to a Third-Party Site or Third-Party Content does not imply our endorsement, adoption or sponsorship of, or affiliation with such Third-Party Site or Third-Party Content.
- This Agreement is effective as of the date you first access the Portal, and continues in effect until such time as either you or we terminate the Agreement.
- We may terminate or suspend your Account immediately upon notice to you if-
Effects of Expiry or Termination
- as a paid subscriber, you breach any terms of this Agreement, including without limitation, non-payment of any fees owed by you in connection with your use of the services of the Portal;
- you are a free user; or
- the Portal ceases operation or that we cease our business operation.
- In the event that this Agreement expires or terminates for whatsoever reasons, the following shall be applicable:-
- our Services and your access to the Portal shall immediately terminate;
- we reserve the right to permanently dispose and delete any data held in the Portal without further reference to you; and
- any claim which either Party may have against the other in respect of any breach or non-performance or repudiation of any of the provisions of this Agreement which shall have occurred prior to such termination shall not be affected or prejudiced.
- You agree to indemnify, defend and hold us, our directors, officers, shareholders, employees, representatives, consultants, agents, subsidiaries, affiliates and applicable third parties (e.g. syndication partners, licensors, licensees, consultants and contractors) (collectively “Indemnified Person(s)”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from your use of the Portal and/or your breach of any term of this Agreement.
- No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
- This Agreement will be governed by the laws of Malaysia and Parties agree that any dispute or claim between you and us will be adjudicated in the courts in Malaysia. Any claim against us arising from this Agreement shall be adjudicated on an individual basis and shall not be consolidated in any proceeding with any claim or controversy of any other party.
- If any of these terms and conditions of this Agreement is unenforceable (including any provision in which we exclude our liability to you), the enforceability of any other part of this Agreement will not be affected.
- We reserve the right to change our terms and conditions herein from time to time. We may change any or all aspects of services provided by the Portal at any time and without notice. Nothing in this Agreement will constrain how we operate our business. You shall be responsible for reviewing and becoming familiar with any such modifications.
- If the alterations constitute a material change to our terms and conditions, we will notify you by posting a notification on the Portal. Use of the services by you following such notification constitutes your acceptance of the terms and conditions as modified.
- What constitutes a “material change” will be determined at our sole discretion, in good faith and using common sense and reasonable judgment.
- In our sole discretion, we may assign this Agreement upon notice to you. Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee that we will take action against all breaches of this Agreement.
Dated:11 JAN 2020