CapitalBay operates a Platform that facilitates supply chain financing through electronic implementation of various Programmes provided on the Platform and made available at www.capitalbay.com.my. Users may register with the Platform to participate in various supply chain financing Programmes made available to it. By signing up to use the CapitalBay 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 , duly authorized to act on behalf of 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 CapitalBay and the User (subject only to CapitalBay’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
In these Terms of Service, unless the context otherwise requires, the following definitions apply:
Agencieshas the meaning given to it in Clause 2.4(b)(b)(ii);
Business Daya day on which commercial banks are open for business in Kuala Lumpur, Malaysia (excluding Saturdays, Sundays and public holidays);
CapitalBayBay 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 InformationInformation 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 PropertyTrademarks, 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-howConfidential 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;
PartiesCapitalBay and the User, and “Party” means any one of them;
Platformthe group of applications, processes and technologies:
(a) developed and maintained by CapitalBay from time to time for the facilitation of supply chain financing under
the name ‘CapitalBay’; and
(b) made available by CapitalBay to the User;
Platform DataAll information, data and analysis (including these Terms of Service and the Programme Rules) made available through the Platform or pursuant to Programme Rules to the User;
Platform Intellectual Property RightsIntellectual Property and Know-how relating to the Platform and the Programmes, and Platform Data developed by CapitalBay including the results of CapitalBay’s internal (or externally procured) information, data and statistical analysis with respect to user activities carried out on the Platform;
Programme RulesIn 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) as are in force from time to time;
ProgrammesSupply chain financing programmes designed by CapitalBay and made available on the Platform from time to time, and “Programme” means any one of them;
Related PersonsHas the meaning given to it in Clause 2.4(b)(a)(ii); and
UserThe 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).
2.1 Account setup and verificationIf the User has completed and submitted application forms and required supporting documentation, CapitalBay 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 informationThe User warrants that all information provided (at registration and throughout its use of the Platform) to CapitalBay is true, current, accurate and complete, and undertakes to maintain and update such information provided to CapitalBay on a regular basis, and as CapitalBay may reasonably request.
2.4 Consent for checks and verifications
(a) As a condition for membership of the Platform, CapitalBay 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) CapitalBay; and
(ii) such agencies, contractors or other persons as CapitalBay 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.
(D) The Users further agree 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 CapitalBay;
(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 approvalCapitalBay 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 CapitalBay’s approval of the User’s application, CapitalBay 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.
3. Licence to use Platform
3.1 Grant of licenceSubject to CapitalBay’s approval of the User’s application, and subject to:
(a) Clause 3.2 (Incorporation of Programme Rules); and
(b) Clause 3.3 (Platform Intellectual Property Rights),
CapitalBay 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.
3.2 Incorporation of Programme RulesIn 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
(b) all the provisions of the relevant Programme Rules 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, these Terms of Service shall prevail.
3.3 Platform Intellectual Property RightsThe User acknowledges that the Platform Intellectual Property Rights belong to CapitalBay and agrees that it shall not do, or authorise any person to do, anything inconsistent with, or which infringes on, CapitalBay’s ownership of the Platform Intellectual Property Rights.
3.4 Prohibited actionsWithout 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) reverse engineering, reverse compiling or otherwise deriving the underlying source code, structure or sequence of the Platform’s software and technology;
(c) 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);
(d) interrupt or attempt to interrupt the operation of the Platform or any Programmes offered through the Platform in any way; or
(e) attempt to obtain unauthorised access to applications, processes and technologies developed and maintained by CapitalBay and not made available by CapitalBay to the User on the Platform.
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) CapitalBay 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 CapitalBay 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, or any indirect, consequential, special, exemplary or punitive losses or damages,
4.1 Confidentiality obligationsSubject to the Programme Rules, 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 obligationsThe 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.
5.1 Termination for breach, insolvency etc.Without affecting any other right or remedy available to it, either Party may terminate these Terms of Service with immediate effect if:
(a) the other Party:
(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 other Party becomes insolvent, or if an order is made or resolution is passed for the winding up of the other Party (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 other Party or in respect of the whole or any part of the other Party’s assets or business, or if the other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of a debt; or
(c) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business having relevance to the continued operation or use of the Platform (as applicable).
5.2 Termination with noticeWithout affecting any other right or remedy available to it:
(a) either Party may terminate these Terms of Service on giving not less than three months' written notice to the other Party; and
(b) CapitalBay 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.
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.
6.1 Notices to Users
Notices and other communications (a “ Notice”) from CapitalBay to Users in connection with the Platform may be:
(a) made through the Platform; or
(b) if in the opinion of CapitalBay 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 CapitalBayNotices from Users to CapitalBay 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.capitalbay.com.my/legalnotices.
6.3 Deemed receiptIf a Notice has been properly sent or delivered in accordance with Clause 6.1 (Notices to Users) or Clause 6.2 (Notices to CapitalBay) (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.
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 Entire agreementThis Terms of Service (together with the relevant Programme Rules) constitute the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter. Any term which may be implied by law into the Terms of Service or the Programme Rules (to the extent that they may be excluded by contract) are expressly excluded.
7.2 Successors and assigns(a) Subject to Clause 7.2(b), these Terms of Service is personal to the Parties. Accordingly, neither Party may, 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.
7.3 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.
7.4 CostsEach 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.
7.5 InvalidityIf 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
7.6 Governing lawThis Terms of Service shall be governed by and construed in accordance with the laws of Malaysia.
7.7 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 video-conference, 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).
7.8 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 courts of 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.
CapitalBay values your privacy and is committed to the protection of your personal data. This Personal Data Protection Notice (“Notice”) describes how CapitalBay collects, handles and uses your personal data in accordance with the Personal Data Protection Act 2010. By using our supply chain financing platform (“Platform”) or submitting your own or another individual’s personal data (e.g. your directors or employees), you consent to the collection, use and disclosure of your personal data by CapitalBay, and confirm that such other individual agrees to our collection, use and disclosure of personal data in accordance with this Notice.