CapBay (or otherwise CapitalBay) operates a Platform that facilitates peer-to-peer and multi-bank supply chain financing through electronic implementation of various Programmes provided on the Platform and made available at www.capbay.com. Users may register with the Platform to participate in various peer-to-peer and multi-bank supply chain financing Programmes made available to it.

By signing up to use the CapBay platform or by continuing your participation in a Programme, you acknowledge that you have read and understood, and agree (on behalf of the User) to be bound by, these Terms of Service in its entirety. Please note that when you check the box marked “I  for myself and/or on behalf of the company , confirm that we agree to these Terms of Service” and click on the button “Submit”, your submission becomes the basis of a legally binding agreement between CapBay and the User (subject only to CapBay’s approval of the application for new users).

Please refrain from submitting an application to access the Platform, continuing to use the Platform or participating in any Programme if you do not agree to these Terms of Service.

1. Definitions and interpretation

1.1 Definitions

In these Terms of Service, unless the context otherwise requires, the following definitions apply:

Agencies

has the meaning given to it in Clause 2.4(b)(ii);

Business Day

a day on which commercial banks are open for business in Kuala Lumpur, Malaysia (excluding Saturdays, Sundays and public holidays);

CapitalBay or CapBay

Bay Smart Capital Ventures Sdn Bhd (Company No. 1280292-W), a company incorporated under the laws of Malaysia having an address at C-05-01, 5th Floor, Block C, Wisma TT, No. 1, Jalan PJS 8/15, Dataran Mentari, 46150 Petaling Jaya, Selangor, Malaysia; and/or Bay Supply Chain Technology Sdn Bhd (Company No. 1242506-P) a company incorporated under the laws of Malaysia having an address at C-05-01, 5th Floor, Block C, Wisma TT, No. 1, Jalan PJS 8/15, Dataran Mentari, 46150 Petaling Jaya, Selangor, Malaysia;

Confidential Information

information which is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances in which the information was acquired or disclosed (including in respect of the User, the Platform Data) but excludes information:

(a) within public knowledge;

(b) obtained from a source not connected with the other Party and not under any obligation of confidence in respect of the information;

(c) known to the other Party before the date of these Terms of Service and not subject to any obligation of confidence on the part of the other Party;

(d) independently developed by a Party; or

(e) relating to the fact of User’s use of the Platform and its participation in a Programme;

Intellectual Property

trademarks, service marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, database rights and all other similar rights in any part of the world including where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;

Know-how

confidential industrial and commercial information and techniques in any form including, without limitation, source code, formulae, data analysis, test results, reports and testing procedures, instruction and manuals, market forecasts, and lists and particulars of participants;

Parties

CapBay and the User, and “Party” means any one of them;

Platform

the group of applications, processes and technologies:

(a) developed and maintained by CapBay from time to time for the facilitation of peer-to-peer financing under the name ‘CapitalBay’ or ‘CapBay’ for CapBay; and

(b) operated by CapBay and made available to the User;

Platform Data

all information, data and analysis (including these Terms of Service and the Programme Rules and where usage is related to the P2P Platform, the Platform Agreement) made available through the Platform or pursuant to Programme Rules or Platform Agreement to the User;

Platform Intellectual Property Rights

Intellectual Property and Know-how relating to the Platform and the Programmes, and Platform Data developed by CapBay together including the results of their internal (or externally procured) information, data and statistical analysis with respect to user activities carried out on the Platform;

Programme Rules

in respect of any one Programme, the rules prescribed on the Platform for the operation of the Programme (including rules prescribing the relationship between, and the roles and responsibilities of, the participants, the terms of financing and any financing instruments in relation to the transactions entered into via the Platform) as are in force from time to time;

Programmes
financing programmes and/or products under peer-to-peer financing and multi-bank supply chain financing designed by CapBay and made available on the Platform from time to time, and “Programme” means any one of them;

Related Persons

has the meaning given to it in Clause 2.4(a)(ii); and

User

the person identified as the owner of the account during registration for use of the Platform (and as may be updated by the User from time to time).

1.2 Interpretation

In these Terms of Service, unless the context otherwise requires:

(a) words in the singular shall include the plural and words in the plural shall include the singular;

(b) a reference to a “person” shall include any natural person, corporate or unincorporated body (whether or not having separate legal personality);

(c) references to Clauses are to the clauses of these Terms of Service;

(d) headings contained in these Terms of Service are for convenience only and shall not affect the construction or interpretation of these Terms of Service;

(e) any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;

(f) there shall be no presumption that any ambiguity should be construed in favour of or against any Party solely as a result of such Party’s actual or alleged role in drafting these Terms of Service or any part of it; and

(g) in these Terms of Service, any reference to a document (including these Terms of Service) is a reference to that document (including any schedules or annexures thereto) as from time to time amended, consolidated, supplemented, novated or replaced.

2. Registration

2.1 Account setup and verification

If the User has completed and submitted application forms and required supporting documentation, CapBay will review the application according to its existing approval procedures. These procedures may include:

(a) verifying the User’s identity, business (including its financial and trading history or performance) and any other information necessary or desirable to adequately protect the interest of Programme participants or maintain the efficient operation of the Platform; and

(b) undertaking various anti-money laundering checks and customer due diligence.

2.2 Accuracy, updating of information

The User warrants that all information provided (at registration and throughout its use of the Platform) to CapBay is true, current, accurate and complete, and undertakes to maintain and update such information provided to CapBay on a regular basis, and as CapBay may reasonably request.

2.3 Processing of personal data

The User consents to CapBay, on behalf of itself and other persons (whose personal data is provided to CapBay), for the processing of such personal data according to CapBay’s privacy policy available on the Platform.

2.4 Consent for checks and verifications

(a) As a condition for membership of the Platform, CapBay, its agents, representatives, consultants, third parties doing business or any other party instructed to act for and on behalf of CapBay pursuant to the fulfilment of this Terms of Services including but not limited to Bay Group Holdings Sdn Bhd and its subsidiaries is permitted to undertake credit, anti-money laundering and other due diligence checks (including checks with the Central Credit Reference Information System and the Dishonoured Cheque Information System maintained by Bank Negara Malaysia and other checks relating to property, litigation, identity, background, compliance risk) on:

    (i) the User; and

    (ii) persons controlling, having an interest or otherwise related to the User such as its directors, shareholders, owners, partners, managers and guarantors (collectively, “Related Persons”).

(b) The User, on behalf of itself and its Related Persons, consents to:

    (i) CapBay; and

    (ii) such agencies, contractors or other persons as CapBay may engage (including credit reporting agencies under the Credit Reporting Agencies Act 2010 such as CTOS Data Systems, RAM Credit Information and Credit Bureau Malaysia) (collectively, the “Agencies”),

to conduct such the checks referred to in Clause 2.4(a) and to:

    (A) procure information relating to the User and its Related Persons from relevant data sources;

    (B) disclose and share information relating to the User and its Related Persons including but not limited to their trade reference information with other subscribers and participants in their services, and with third parties and data processors located     within or outside Malaysia; and

    (C) retain information in the Agencies database subject to and consistent with applicable laws.

(c) The User grants consent to CapBay to the collection of your personal and corporate data including that of its officers, employees, representatives, contractors, agents, shareholders, suppliers, vendors, related parties, business counterparts and otherwise those instructed by or doing business with you to be used by CapBay and any of its related parties, to be shared with and provided to registered credit reporting agencies regulated by the laws of Malaysia including but not limited to those regulated under the Credit Reporting Agencies Act 2010, the Companies Act 2016 (including the Companies Commission of Malaysia), the Insolvency Act 1967, the Securities Commission Act 1993, Capital Market and Services Act 2007, Trust Corporation Act 1949, any statutory or other regulatory authority authorized by law to require disclosure for any compliance, anti-money laundering, tax, customs, duties, trade or such other law and regulation which from time to time may be introduced and required under the applicable law, whether that of Malaysia or other jurisdiction which may have governing interest over the User and/or CapBay.

(d) The User further agrees that consent given by the User, on behalf of itself and its Related Persons is :-

    (i) irrevocable for the duration which the User has a business relationship, facility or amount due to CapBay; and

    (ii) without holding the Agencies liable for all activities conducted in relation to the checks and disclosure of information referred to in sub-Clauses 2.4(b)(A) and (B),

and the User, on behalf of itself and its Related Persons, agrees to the same (where applicable).

2.5 User approval

CapBay reserves the right to approve or reject a User’s application at its sole and absolute discretion (without being required to disclose any reasons for its decision).

2.6 Access to Platform

(a) Subject to CapBay’s approval of the User’s application, CapBay will allocate the User a unique username and password, or multiple unique usernames and passwords, which must be used to access the Platform (each, an “Account”).

(b) The User is responsible for safeguarding its username and password, and other details or authentication systems capable of giving access to its Accounts on the Platform and accepts full liability with respect to any activity related to each of its Accounts.

2.7 Data Collection & Sharing

During the course of our activities, CapBay may collect, record, hold, store and/or process personal data about CapBay’s platform users, customers, suppliers and other third parties in any medium whether electronically or otherwise, for the purposes of assessing credit risks the transactions and any other purposes permitted under the law and the Personal Data Protection Act 2010 (“PDPA”), and CapBay recognises that the correct and lawful treatment of this data will remain confidential in the organisation.

(a) Personal data includes name, address, copies and details of identification documents, contact details, employment history, credit and references check, marital status, commission or alleged commission of offence, data activity, financing activity, financial position on the Platform, personal, corporate financial and social security details, provided to CapBay from time to time.

(b) The User authorises CapBay, its related entities and business partners including any of their appointed representatives, related parties, and contractors, successors and assignees to share, collect, retrieve, process and store the User’s information and data with such other entities as may be relevant for the User to obtain financial services on the Platform.

3. Licence to use Platform

3.1 Grant of licence

Subject to CapBay’s approval of the User’s application, and subject to:

(a) Clause 3.2 (Incorporation of Programme Rules and Platform Agreement); and

(b) Clause 3.3 (Platform Intellectual Property Rights),

CapBay grants the User a non-exclusive, non-transferable and revocable licence to use, access and communicate through the Platform, and use the Platform Data, solely for:

    (i) the purpose of the User’s participation in a Programme; and

    (ii) the purposes contemplated in the relevant Programme Rules and where usage is related to the P2P Platform, the Platform Agreement.

3.2 Incorporation of Programme Rules

In respect of each Programme which the User participates in on the Platform:

(a) the licence granted pursuant to Clause 3.1 (Grant of licence) is subject to the provisions of the relevant Programme Rules and where usage is related to the P2P Platform, the Platform Agreement; and

(b) all the provisions of the relevant Programme Rules and Platform Agreement as amended or revised from time to time or any new edition of it are incorporated into and shall form part of these Terms of Service as though fully set forth in it, and in the event of any conflict between a term of these Terms of Service and a provision in the relevant Programme Rules and Platform Agreement, these Terms of Service shall prevail.

3.3 Platform Intellectual Property Rights

The User acknowledges that the Platform Intellectual Property Rights belong to CapBay and agrees that it shall not do, or authorise any person to do, anything inconsistent with, or which infringes on, CapBay’s ownership of the Platform Intellectual Property Rights.

3.4 Prohibited actions

Without limiting the generality of the above Clauses 3.1 to 3.3, the User shall not:

(a) sublicense or otherwise offer access to the Platform to any third parties;

(b) use the Platform for activity in contravention with the laws of Malaysia;

(c) reverse engineering, reverse compiling or otherwise deriving the underlying source code, structure or sequence of the Platform’s software and technology or in any way affecting the Platform Intellectual Property Rights;

(d) exchange, modify, copy, reproduce, publish, post, transmit, distribute, on-screen display, transfer or sell posts, messages, texts, files, images, pictures, videos, sounds or any other element of the Platform, including the Platform Data (other than strictly for the User’s internal business purposes as it relates to the User’s participation in a Programme);

(e) remove, obscure, or alter any copyright, trademark, design, or other proprietary information or data, pass off, falsify, delete or remove author attributions, legal notices or such other labels evidencing origin or source;

(f) interrupt or attempt to interrupt the operation of the Platform or any Programmes offered through the Platform in any way;

(g) attempt to obtain unauthorised access to applications, processes and technologies developed and maintained by CapBay and not made available by CapBay to the User on the Platform; or

(h) Use the Platform in any way which CapBay may reasonably deem as an abuse, for example, scraping of data and information, threatening, libelling, any action or omission tortious in nature, which violates any law including but not limited to the rights of any person, privacy, intellectual property rights, or any action or omission which more generally does not fall under the intended or reasonably permissible or acceptable use as determined solely by CapBay.

3.5 Scope of liability 

In respect of any loss or damage (whether arising from breach of contract, tort or otherwise) in connection with the User’s use of the Platform and Platform Data or the User’s participation in a Programme,

(a) CapBay shall only be liable to the User to the extent that compensation is afforded under law; and

(b) under no circumstances (notwithstanding the foregoing Clause 3.5(a)) shall CapBay be liable to the User, in connection with its use of the Platform or its participation in a Programme for any loss of business or profits, revenue or goodwill, economic, or any indirect, consequential, special, exemplary or punitive losses or damages.

4. Confidentiality

4.1 Confidentiality obligations

Subject to the Programme Rules and where usage is relate to the P2P Platform, the Platform Agreement, each Party shall at all times use all reasonable endeavours to keep confidential, and to ensure that its officers, employees and agents shall keep confidential, any Confidential Information and shall not use or disclose any such Confidential Information except:

(a) to such Party's professional advisers where such disclosure is for a purpose related to the Platform;

(b) with the written consent of the Party that the information relates to;

(c) as may be required by law or by the rules of any recognised stock exchange, or governmental or other regulatory body; or

(d) if the information comes within the public domain (otherwise than as a result of the breach of this Clause 4.1).

4.2 Survival of obligations

The obligations of each Party in this Clause 4 shall continue without limit in time and notwithstanding termination of these Terms of Service for any cause.

4.3 Assignment of Rights

CapBay reserves the right to assign its rights under this Terms of Service to any party it chooses without requiring the consent of the Participant. Any notification of an assignment may be validly notified via the Platform.

5. Termination

5.1 Termination for breach, insolvency etc.

Without affecting any other right or remedy available to it, CapBay may suspend or restrict access, or terminate these Terms of Service with immediate effect if:

(a) the User:

    (i) commits a material breach of any other term of these Terms of Service which breach is irremediable or, if such breach is remediable, fails to remedy that breach within a period of 14 days after being notified in writing to do so;

    (ii) repeatedly breaches any of the terms of these Terms of Service in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms of Service;

(b) the User becomes insolvent, or if an order is made or resolution is passed for the winding up of the User (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if a special administrator, receiver and manager or receiver is appointed in respect of that User or in respect of the whole or any part of the User’s assets or business, or if the User makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of a debt; or

(c) the User suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its

5.2 Termination with notice

Without affecting any other right or remedy available to it:

(a) CapBay may terminate these Terms of Service on giving not less than three months' written notice to the User; and

(b) CapBay may terminate these Terms of Service on giving not less than one months' written notice to the User if the User is not participating in any one Programme at that point of time.

Any financing activity or transactions ongoing will remain unaffected.

5.3 Consequence of termination

(a) Any provision of these Terms of Service that expressly or by implication is intended to come into or continue in force on or after termination of these Terms of Service shall remain in full force and effect.

(b) Termination of these Terms of Service shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Terms of Service which existed at or before the date of termination.

6. Notices

6.1 Notices to Users

Notices and other communications (a “Notice”) from CapBay to Users in connection with the Platform may be:

(a) made through the Platform; or

(b) if in the opinion of CapBay the circumstances warrant, delivered by hand, sent by prepaid registered post, sent by commercial courier or sent by email for the attention of the authorised person and to the address or email given by the User on the Platform.

6.2 Notices to CapBay

Notices from Users to CapBay in connection with the Platform may be delivered by hand, sent by prepaid registered post, sent by commercial courier or sent by email for the attention of the person and to the address or email provided at www.capbay.com.

6.3 Deemed receipt

If a Notice has been properly sent or delivered in accordance with Clause 6.1 (Notices to Users) or Clause 6.2 (Notices to CapBay) (as applicable), it will be deemed to have been received as follows:

(a) if sent through the Platform, at the time which the Notice is acknowledged to have been received on the Platform;

(b) if delivered by hand, at the time of delivery;

(c) if sent by post, at the time at which the letter would be delivered in the ordinary course of post;

(d) if sent by courier, at the time of signature of the courier’s delivery receipt; or

(e) if sent by email, one hour after the Notice was sent.

provided that if deemed receipt under the previous paragraphs is not within business hours (meaning 9.00 a.m. to 5.00 p.m. on a Business Day), it is deemed received on the next Business Day.

6.4 Non-application

This Clause 6 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

7. General provisions

7.1 Successors and assigns

(a) Subject to Clause 7.1(b), these Terms of Service is personal to the Parties. Accordingly, the User may not, without the prior written consent of the other, assign the benefit of all or any of the other’s obligations under these Terms of Service, or any benefit arising under or out of these Terms of Service.

(b) Either Party may, without the consent of the other, assign to a subsidiary or related corporation the benefit of all or any of the other Parties’ obligations under these Terms of Service provided that if the assignee ceases to be a subsidiary or related corporation of the relevant Party, the benefit of those obligations shall be reassigned to the relevant Party or a related corporation of the relevant Party.

7.2 Release, indulgence and waiver

No failure on the part of a Party to exercise, and no delay on its part in exercising, any right or remedy under these Terms of Service shall operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

7.3 Costs

Each Party shall bear its costs incurred by it in connection with the preparation, negotiation and entry into of these Terms of Service, and its participation in any Programme.

7.4 Invalidity

If any term in these Terms of Service shall be held to be illegal, invalid or unenforceable, in whole or in part, under any enactment or rule of law, such term or part shall to that extent be deemed not to form part of this Governing law, dispute resolution and jurisdiction

7.5 Governing law

This Terms of Service shall be governed by and construed in accordance with the laws of Malaysia.

7.6 Dispute resolution

(a) If any dispute arises under or in connection with these Terms of Service between the Parties, the Parties shall make a good faith effort to resolve the dispute before taking any legal action.

(b) The Parties shall meet at the earliest opportunity to discuss the dispute after one Party gives written notice to the other Party that such a dispute exists. Such meeting may be held by way of videoconference, teleconference or other electronic means whereby each participant in the meeting can hear and be heard by every other participant, if travel is impractical.

(c) At such meeting, a senior officer or principal of the Parties who has authority to resolve the dispute shall be in attendance. Legal action may only be commenced:

    (i) after the Parties have met pursuant to this Clause 7.7(b); or

    (ii) if no meeting has taken place pursuant to this Clause 7.7(b), after one month from the receipt of the written notice reference in Clause 7.7(b) (except in the case where immediate injunctive relief is being sought).

7.7 Jurisdiction

(a) In relation to any legal action or proceedings to enforce these Terms of Service or arising out of or in connection with these Terms of Service (‘Proceedings’), each of the Parties irrevocably submits to the jurisdiction of the court of competent jurisdiction in Kuala Lumpur, Malaysia and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that the Proceedings have been brought in an inconvenient forum.

(b) These submissions shall not affect the right of any Party to take Proceedings in any other jurisdiction, nor shall the taking of Proceedings in any jurisdiction preclude any Party from taking Proceedings in any other jurisdiction.

(c) These submissions shall not affect the right of any Party to take Proceedings with a view to obtaining interim relief in any other jurisdiction.

7.8 Relationship of parties

Notwithstanding any provision hereof, for all purposes of the Platform and any Services, CapBay shall be deemed to act independently and not as partner, joint venturer, agent, employee, or employer of the other. The User shall not have any authority to assume or create any obligation for or on behalf of us, express or implied, and you shall not attempt to bind CapBay to any contract.

7.9 Business Continuity Plan

In the unlikely event that CapBay undergoes winding-up, restructuring, or any other proceedings or activity affecting CapBay’s ability to provide and sustain an acceptable quality of Platform services, the Platform management, maintenance, and upkeep shall be duly handed over to a separate entity to ensure smooth provision of services and usage of the Platform.