Last updated: 15 October 2026

1. DEFINITIONS AND INTERPRETATION

1.1 In these Terms, unless the context otherwise requires:

  • (a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party;
  • (b) “Authorised User” means an employee, contractor or agent of the Client whom the Client permits to access the Services under its account;
  • (c) “Business Day” means a day other than a Saturday, Sunday or public holiday in Malaysia;
  • (d) “Client” means the individual or entity that accesses or uses the Services or enters into a Services Agreement or Order with Avinity and, where an individual accepts these Terms on behalf of an organisation, that organisation;
  • (e) “Client Data” means all data, content and materials submitted to the Services or provided to Avinity by or on behalf of the Client, including any personal data;
  • (f) “Data Products” means the datasets, data feeds, reports and insights compiled or licensed by Avinity and made available to the Client, including retail and outlet data;
  • (g) “Deliverables” means the reports, dashboards, models, code, configurations and other materials prepared by Avinity specifically for the Client under a Statement of Work;
  • (h) “Order” means an order form, quotation, proposal or online subscription accepted by both parties that specifies the Services, fees and term;
  • (i) “Outputs” means the results, content, recommendations and other material generated by the Platform, including by its artificial intelligence features, in response to Client Data or the Client’s instructions;
  • (j) “Platform” means Avinity’s proprietary software products, including its Avinity Query Intelligence platform and others, made available on a subscription or contract basis;
  • (k) “Professional Services” means the consulting, development, maintenance, training and other services performed by Avinity under a Statement of Work;
  • (l) “Services” means Avinity’s website at www.avinityanalytics.com, the Platform, the Data Products and the Professional Services, collectively or individually as the context requires;
  • (m) “Services Agreement” means a services agreement or master services agreement signed by Avinity and the Client; and
  • (n) “Statement of Work” means a document agreed in writing by both parties describing the scope, Deliverables and timeline for Professional Services.

1.2 In these Terms, headings are for convenience only; words in the singular include the plural and vice versa; “including” means including without limitation; and a reference to legislation includes that legislation as amended or re-enacted.

1.3 “Fixed-Term Engagement” and “Subscription” have the meanings given in Clause 7.1.

2. ACCEPTANCE OF TERMS

2.1 These Terms of Service (“Terms”) constitute a legally binding agreement between Avinity Analytics Sdn. Bhd. (Company Registration No. 202201002784 (1448481W)), a company incorporated in Malaysia with its registered office at D-9-15, Oasis Square, No 2, Jalan PJU 1A/7A, Ara Damansara, 47301 Petaling Jaya, Selangor, Malaysia (“Avinity”), and the Client, and govern the Client’s access to and use of the Services.

2.2 By accessing or using the Services, signing a Services Agreement or Order or clicking to accept these Terms, the Client confirms that it has read, understood and agrees to be bound by these Terms. A Client that does not agree to these Terms must not access or use the Services. An individual who accepts these Terms on behalf of an organisation represents and warrants that the individual has authority to bind that organisation.

2.3 Where the Client has entered into a Services Agreement, Order or Statement of Work with Avinity, that document governs the services it covers. In the event of any conflict, the following order of precedence applies: (a) the Services Agreement; (b) the applicable Order or Statement of Work; and (c) these Terms, save that any data processing agreement between the parties prevails in respect of the processing of personal data.

2.4 Avinity’s Privacy Notice and any other policies referenced in these Terms or published on the Services form part of these Terms by reference.

2.5 Amendments. Avinity may amend these Terms from time to time. Avinity shall update the “Last updated” date above and, for material amendments, shall give the Client at least thirty (30) days’ prior notice by email or in-product notification before the amendments take effect. Continued use of the Services after the effective date constitutes acceptance of the amended Terms. A Client that does not accept the amendments must cease using the Services before they take effect. Material amendments shall not apply to a Fixed-Term Engagement or Subscription during its current term unless the Client agrees otherwise.

2.6 Avinity provides the Services to Clients in Malaysia and other jurisdictions. Avinity does not offer the Services in any jurisdiction where doing so would be unlawful or would require a registration or licence that Avinity has not obtained. The Client is responsible for ensuring that its use of the Services complies with the laws of each jurisdiction in which it operates, including data protection laws.

2.7 Unless otherwise agreed in writing, the Services are not designed to process data subject to sector-specific regulatory requirements (including regulated health data and payment card data), and the Client shall not submit such data to the Services.

2.8 Eligibility. The Services are intended for business use. Individuals using the Services must be at least eighteen (18) years of age and acting in the course of a business, trade or profession.

3. THE SERVICES

3.1 Avinity provides data solutions comprising (a) subscriptions to the Platform; (b) licences to Data Products; and (c) Professional Services. The Services, subscription term, usage limits and fees applicable to the Client are set out in the relevant Services Agreement or Order, and the scope of any Professional Services is set out in the relevant Statement of Work.

3.2 Avinity may update, modify or improve the Services, including the website and the Platform, from time to time. Avinity shall not materially reduce the functionality of, or discontinue, any Services the Client has paid for during the current term of a Fixed-Term Engagement or Subscription, except (a) as agreed with the Client under Clause 7.4; (b) where required by law or to address a material security risk; or (c) where a third-party provider on which the Services depend ceases to make its services available, in which case Clause 3.3 applies.

3.3 Where Avinity discontinues any part of the Services the Client has paid for, or materially reduces their functionality, during the current term of a Fixed-Term Engagement or Subscription, Avinity shall give reasonable notice and refund any prepaid fees for the discontinued or affected portion.

3.4 Avinity shall use commercially reasonable efforts to make the Platform available but does not guarantee that the Services will be available at all times. Hardware, software or other faults and scheduled maintenance may result in interruptions, delays or errors. Except as provided in a separate service level agreement, Avinity shall not be liable for any loss, damage or inconvenience arising from the Client’s inability to access or use the Services during any downtime.

3.5 During the term of any Fixed-Term Engagement or Subscription that includes access to the Platform, Avinity shall provide standard technical support and maintenance for the Platform, including the correction of reproducible errors and the updates it makes generally available to its clients, in accordance with any support terms in the Services Agreement or Order. Unless otherwise agreed in a Services Agreement, Order or Statement of Work, Avinity has no obligation to provide support, maintenance, corrections or updates: (a) after the expiry or termination of the applicable Fixed-Term Engagement, Subscription, Order or Statement of Work; (b) for Deliverables after their acceptance; (c) for free, trial or pilot access to the Services; (d) while any fees due from the Client remain unpaid; or (e) for any part of the Services or Deliverables that has been modified by anyone other than Avinity or used other than in accordance with these Terms.

4. ACCOUNTS AND SECURITY

4.1 Access to certain Services requires the registration of an account. The Client shall provide accurate, current and complete information and shall keep that information up to date.

4.2 The Client is responsible for maintaining the confidentiality of login credentials, for using multi-factor authentication where available, and for all activity under its account, including activity by its Authorised Users. The Client shall notify Avinity immediately at [email protected] of any unauthorised use of its account or any other security breach.

4.3 Each account is personal to the named Authorised User and shall not be shared. Avinity may suspend or deactivate any Authorised User account that is shared, inactive for twelve (12) months, or registered with untrue, inaccurate or incomplete information.

5. CLIENT OBLIGATIONS AND ACCEPTABLE USE

5.1 The Client represents and warrants that: (a) it has the legal capacity to enter into, and shall comply with, these Terms; (b) it shall not use the Services for any illegal or unauthorised purpose; and (c) its use of the Services shall comply with all applicable laws and regulations, including the Personal Data Protection Act 2010, the Communications and Multimedia Act 1998 and the Computer Crimes Act 1997.

5.2 The Client shall use the Services solely for its internal business purposes and within the usage limits set out in the applicable Services Agreement or Order.

5.3 The Client shall not, and shall ensure that its Authorised Users do not:

  • (a) copy, modify, adapt or create derivative works of the Platform or its software, including HTML, JavaScript or other code;
  • (b) except to the extent permitted by applicable law, decipher, decompile, disassemble or reverse engineer any software forming part of the Services;
  • (c) systematically retrieve data or other content from the Services to create or compile a collection, database or directory, or use any robot, spider, scraper or other automated means to access the Services, except through application programming interfaces made available by Avinity for that purpose;
  • (d) circumvent, disable or interfere with the security features, usage limits or access controls of the Services;
  • (e) probe, scan or test the vulnerability of the Services or perform penetration testing without Avinity’s prior written consent (security researchers may report issues to [email protected]);
  • (f) upload or transmit viruses, Trojan horses, spyware or other harmful code, or any material that acts as a passive or active information collection or transmission mechanism;
  • (g) interfere with, disrupt or place an undue burden on the Services or the networks or services connected to them;
  • (h) impersonate any person, misrepresent an affiliation, or use the credentials of another user;
  • (i) remove any copyright or other proprietary notice from the Services or Data Products;
  • (j) collect personal data of other users of the Services, or create accounts by automated means or under false pretences;
  • (k) use the Services or Outputs to develop a competing product or service, or publish benchmark or performance tests of the Services without Avinity’s prior written consent;
  • (l) submit Client Data that the Client does not have the right to provide or that infringes the rights of any third party; or
  • (m) use the Services in any manner inconsistent with applicable laws or regulations.

6. FEES AND PAYMENT

6.1 The fees, invoicing schedule, payment period and payment terms for the Services are as set out in the applicable Services Agreement, Order or invoice issued by Avinity.

6.2 Fees are payable in the currency stated in the Services Agreement, Order or invoice, which may be Ringgit Malaysia (MYR), Singapore Dollar (SGD), United States Dollar (USD), Pound Sterling (GBP) or any other currency agreed by the parties in writing before invoicing.

6.3 Fees are exclusive of taxes. Sales and Service Tax (SST) shall be charged at the prevailing rate on fees payable by Clients in Malaysia unless an exemption applies, and shall not be charged to Clients outside Malaysia where the Services are exempt under Malaysian law. The Client shall bear any other taxes applicable to the Services. Where the Client is required by law to withhold any tax from a payment, the Client shall increase the payment so that Avinity receives the full invoiced amount.

7. TERM, RENEWAL AND CANCELLATION

7.1 Engagement types. Each Services Agreement or Order shall state whether the engagement is:

  • (a) a fixed-term engagement, under which Services are delivered over a set period stated in the Services Agreement or Order (a “Fixed-Term Engagement”); or
  • (b) a subscription to the Platform on a recurring basis (a “Subscription”).

7.2 Fixed-Term Engagements. A Fixed-Term Engagement commences on the start date stated in the Services Agreement or Order and continues for the period stated in it. Unless the Services Agreement or Order provides otherwise, it expires at the end of that period and does not renew automatically. Any extension requires a new Order or a written variation signed by both parties.

7.3 Subscriptions. A Subscription commences on the start date stated in the Services Agreement or Order and continues for the subscription term stated in it. Unless the Services Agreement or Order provides otherwise, a Subscription renews automatically for successive periods equal to the initial term, unless either party gives written notice of non-renewal at least thirty (30) days before the end of the current term. The Client may give notice of non-renewal by logging into its account or by notice to Avinity under Clause 26. Notice of non-renewal given less than thirty (30) days before the end of the current term takes effect at the end of the following renewal term.

7.4 Cancellation before the end of a term. Neither party may cancel a Fixed-Term Engagement or a Subscription before the end of its current term except by written agreement of both parties. Each party may agree to or decline a request for cancellation at its discretion.

7.5 Fees. Unless the written cancellation agreement provides otherwise:

  • (a) fees already paid are non-refundable, except where required by law, where Clause 3.3 or Clause 16.3 provides for a refund, or where the Services Agreement or Order expressly provides otherwise; and
  • (b) fees for Services performed up to the date of cancellation remain payable.

7.6 Other termination rights. Nothing in this Clause 7 limits either party’s right to terminate under Clause 16.2 (termination for breach or insolvency) or Avinity’s right to suspend under Clause 15.2.

8. PROFESSIONAL SERVICES AND DELIVERABLES

8.1 Avinity shall perform Professional Services as described in the applicable Statement of Work using appropriately qualified personnel.

8.2 The Client shall provide timely access to the information, data, systems, premises and personnel reasonably required by Avinity, and shall ensure that information it provides is accurate and complete. Avinity is not responsible for any delay or failure caused by the Client’s failure to meet these obligations, and any resulting additional work may be charged at Avinity’s prevailing rates.

8.3 Either party may request changes to the scope of a Statement of Work. No change is binding unless it is set out in a written change request signed by both parties, including any adjustment to fees and timelines.

8.4 Acceptance. Unless the Statement of Work provides otherwise, a Deliverable is deemed accepted on the earliest of: (a) the Client’s written acceptance; (b) the Client’s use of the Deliverable in its live business operations; or (c) the expiry of thirty (30) Business Days after delivery without the Client notifying Avinity in writing of a material non-conformity with the Statement of Work. Avinity shall correct any notified non-conformity and resubmit the Deliverable for acceptance.

8.5 Work requested outside the scope of a Statement of Work, or performed after its end date at the Client’s request, shall be charged at the rates in the applicable Services Agreement or Order or, if none are stated, at Avinity’s prevailing rates.

8.6 Timelines in a Statement of Work are estimates unless expressly stated to be binding.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Except for Client Data, the Services, including all software, source code, databases, Data Products, functionality, website designs, audio, video, text, photographs and graphics (the “Content”), and the trademarks, service marks and logos contained in them (the “Marks”), are owned or controlled by or licensed to Avinity and are protected by the copyright, trademark and other intellectual property laws of Malaysia, other jurisdictions and international conventions.

9.2 Except as expressly permitted by these Terms or a Services Agreement or Order, the Client shall not copy, reproduce, republish, distribute, sell, license or otherwise commercially exploit the Services, Content or Marks, or make them available to any third party. This Clause does not restrict the Client’s use of Deliverables and Outputs in accordance with Clauses 9.5 and 13.5, or the sharing of Content within the Client’s organisation for its internal business purposes.

9.3 Subject to the Client’s compliance with these Terms and payment of the applicable fees, Avinity grants the Client a limited, non-exclusive, non-transferable, non-sublicensable licence, revocable only in accordance with these Terms, during the term of the applicable Fixed-Term Engagement or Subscription to access and use the Services, and to download or print a copy of any portion of the Content to which it has properly gained access, solely for its internal business purposes. All rights not expressly granted are reserved by Avinity.

9.4 Avinity Materials. Avinity retains all rights in its pre-existing materials, know-how, methodologies, templates, tools, code libraries and the Platform, including any improvements made to them in the course of performing the Services (the “Avinity Materials”).

9.5 Deliverables. Upon receipt of full payment of the fees for the relevant Professional Services, Avinity grants the Client a perpetual, non-exclusive, royalty-free licence to use the Deliverables for its internal business purposes. To the extent any Avinity Materials are incorporated in a Deliverable, Avinity grants the Client a perpetual, non-exclusive, royalty-free licence to use those Avinity Materials as part of that Deliverable for its internal business purposes.

9.6 Feedback. Any questions, comments, suggestions, ideas, feedback or other information about the Services provided by the Client (“Feedback”) are non-confidential. The Client grants Avinity a perpetual, irrevocable, worldwide, royalty-free licence to use and share Feedback for any lawful purpose, commercial or otherwise, without acknowledgement or compensation. To the extent permitted by law, the Client waives any moral rights in Feedback and warrants that Feedback is original to it or that it has the right to provide it.

10. CLIENT DATA

10.1 As between the parties, the Client retains all right, title and interest, including all intellectual property rights, in Client Data. Avinity does not claim ownership of Client Data.

10.2 The Client grants Avinity a non-exclusive, worldwide, royalty-free licence, for the duration of the Services and any retention period under Clause 11.6, to host, store, copy, process, transmit and display Client Data solely as necessary to provide, secure and support the Services and as otherwise permitted by these Terms. Avinity may permit its subcontractors and sub-processors engaged under Clause 11.5 to exercise this licence on Avinity’s behalf.

10.3 The Client represents and warrants that: (a) it owns or has obtained all rights, licences, consents, releases and permissions necessary to provide Client Data to Avinity and to authorise its processing under these Terms; (b) Client Data does not infringe the proprietary rights (including copyright, patent, trademark, trade secret or moral rights) of any third party; and (c) it has given all notices and obtained all consents required under the Personal Data Protection Act 2010 for any personal data contained in Client Data.

10.4 Aggregated Data. Avinity may collect and use technical and usage data relating to the Services, and may compile aggregated and anonymised data derived from the Client’s use of the Services, to operate, maintain and improve the Services and to develop benchmarks, provided that such data does not identify the Client, any Authorised User or any individual.

10.5 The Client is solely responsible for Client Data, and Avinity is not liable for any statement or representation contained in it.

10.6 The Client is responsible for maintaining its own copies of Client Data. Except to the extent caused by Avinity’s failure to comply with these Terms or applicable law, Avinity is not liable for any loss or corruption of Client Data.

11. DATA PROTECTION AND SECURITY

11.1 Avinity processes personal data in accordance with the Personal Data Protection Act 2010 of Malaysia (the “PDPA”) and its Privacy Notice at https://avinityanalytics.com/privacy-policy/, which explains what personal data Avinity collects, the purposes of collection, how long it is kept, with whom it is shared and how individuals may exercise their rights of access and correction.

11.2 Where the Client uses the Services to process personal data on behalf of its organisation, the Client is responsible for the lawfulness of that processing; as between the parties, the Client acts as data controller and Avinity acts as data processor, and Avinity shall process such personal data only on the Client’s documented instructions. Such processing is further governed by any applicable Services Agreement and data processing agreement.

11.3 Avinity shall implement and maintain reasonable administrative, technical and physical security measures designed to protect Client Data, including encryption in transit and at rest and regular backups.

11.4 Avinity shall notify the Client without undue delay after becoming aware of a personal data breach affecting Client Data, and shall provide reasonable information and assistance to enable the Client to meet its notification obligations under the PDPA.

11.5 Avinity may engage subcontractors and sub-processors, including cloud hosting providers, to provide the Services. Avinity remains responsible for their performance and shall impose on them data protection obligations no less protective than those in these Terms. Client Data may be stored or processed outside Malaysia in accordance with the cross-border transfer requirements of the PDPA.

11.6 Upon termination or expiry of the relevant Fixed-Term Engagement or Subscription, the Client may export Client Data for ninety (90) days. Thereafter, Avinity shall delete or anonymise Client Data within ninety (90) days in accordance with its Privacy Notice, unless retention is required by law.

11.7 Avinity uses cookies and similar technologies as described in its Privacy Notice at https://avinityanalytics.com/privacy-policy/.

12. CONFIDENTIALITY

12.1 “Confidential Information” means all non-public information disclosed by one party (the “Discloser”) to the other (the “Recipient”) that is marked as confidential or that a reasonable person would understand to be confidential, including Client Data, pricing, product roadmaps and the terms of any Services Agreement, Order or Statement of Work.

12.2 The Recipient shall: (a) use the Discloser’s Confidential Information only to perform its obligations or exercise its rights under these Terms; (b) not disclose it to any third party other than its employees, officers, subcontractors and professional advisers who need to know it and are bound by confidentiality obligations no less protective than these; and (c) protect it with at least reasonable care.

12.3 Clause 12.2 does not apply to information that: (a) is or becomes public other than through a breach of these Terms; (b) was lawfully known to the Recipient before disclosure; (c) is lawfully received from a third party without restriction; or (d) is independently developed without use of the Discloser’s Confidential Information. The Recipient may disclose Confidential Information where required by law or a competent authority, provided that it gives the Discloser prompt notice where lawful.

13. DATA PRODUCTS, THIRD-PARTY DATA AND AI OUTPUTS

13.1 Data Products are licensed, not sold. Unless otherwise stated in the Services Agreement or Order, the Client may use Data Products only for its internal business purposes during the licence term and shall not resell, redistribute or publish them, or incorporate them into any product or service offered to third parties.

13.2 Data Products and certain Services may incorporate data from third-party and public sources. Avinity uses reasonable efforts to source and compile such data responsibly but does not warrant that it is complete, accurate or current. Data from third-party sources may be subject to additional terms notified to the Client.

13.3 The Platform includes features that use artificial intelligence and machine learning. Outputs are generated probabilistically, may be inaccurate or incomplete, and may be similar to outputs provided to other clients. The Client shall review Outputs before relying on them and is responsible for decisions and actions taken on the basis of Outputs, including actions performed by AI agents that the Client configures or authorises. The Client shall not use Outputs as the sole basis for decisions that produce legal or similarly significant effects on individuals, including decisions on employment, credit, insurance or housing.

13.4 Avinity shall not use Client Data or Outputs to train artificial intelligence models made available to other clients without the Client’s prior written consent.

13.5 As between the parties, the Client owns the Outputs generated from Client Data, subject to Avinity’s rights in the Platform and the Avinity Materials.

14. THIRD-PARTY SERVICES AND LINKS

14.1 The Services may contain links to third-party websites and may offer integrations with third-party applications and services that the Client chooses to enable. Avinity provides such integrations in accordance with the applicable third party’s terms. Avinity does not control and is not responsible for third-party websites, applications or services, and the Client’s use of them is governed by their own terms and privacy policies.

14.2 To enable an integration, the Client must hold a valid account with, and any rights required from, the relevant third party. Where the Client enables an integration, the Client authorises Avinity to exchange Client Data with that third-party service as necessary for the integration to function. Avinity is not responsible for any change to or withdrawal of a third-party service, except as provided in Clauses 3.2 and 3.3.

15. SERVICE MANAGEMENT AND SUSPENSION

15.1 Avinity reserves the right, but not the obligation, to: (a) monitor the Services for breaches of these Terms; (b) take appropriate legal action against any person who, in Avinity’s reasonable discretion, breaches the law or these Terms, including reporting that person to law enforcement authorities; (c) refuse, restrict access to or disable any Client Data that Avinity reasonably believes breaches these Terms or applicable law; and (d) otherwise manage the Services in a manner designed to protect its rights and property and to facilitate their proper functioning.

15.2 Avinity may suspend the Client’s access to all or part of the Services: (a) immediately, where reasonably necessary to prevent a security threat or to comply with law; (b) immediately, where the Client commits a material breach of Clause 5; or (c) on at least fourteen (14) days’ written notice, while any undisputed amount remains overdue. Avinity shall notify the Client of any immediate suspension as soon as practicable and shall restore access promptly once the cause has been resolved. Suspension does not relieve the Client of its obligation to pay fees.

16. TERMINATION

16.1 These Terms remain in full force and effect while the Client uses the Services or any Services Agreement, Order or Statement of Work remains in effect.

16.2 Either party may terminate a Fixed-Term Engagement or Subscription, or the Services Agreement or Order under which it is provided, by written notice if the other party: (a) commits a material breach and fails to remedy it within thirty (30) days after receiving written notice of the breach; (b) becomes insolvent, enters into liquidation, has a receiver or administrator appointed, or makes an arrangement with its creditors; or (c) commits a material breach of Clause 5 that is not capable of remedy. Termination of a Services Agreement terminates every Fixed-Term Engagement and Subscription provided under it, unless the notice states otherwise.

16.3 Upon termination or expiry: (a) all licences granted to the Client end and the Client shall cease using the Services; (b) the Client shall pay all fees accrued up to the date of termination, including for Professional Services performed up to that date; and (c) each party shall return or destroy the other party’s Confidential Information, subject to Clause 11.6. Where the Client terminates for Avinity’s uncured material breach, Avinity shall refund any prepaid fees for the unused portion of the terminated Fixed-Term Engagement or Subscription.

16.4 Provisions of these Terms that by their nature should survive termination, including Clauses 6.1 to 6.3, 7.5, 9, 10, 11.6, 12, 13.1, 16.3, 17, 18, 19, 20, 23 and 25, survive termination or expiry.

17. WARRANTIES AND DISCLAIMERS

17.1 Each party warrants that it is duly incorporated and has full power and authority to enter into these Terms.

17.2 Avinity warrants that it shall perform Professional Services with reasonable skill and care in accordance with generally recognised industry standards. The Client’s exclusive remedy for breach of this warranty is the re-performance of the non-conforming Professional Services or, if re-performance is not achieved within a reasonable time, a refund of the fees paid for those Professional Services, provided that the Client notifies Avinity of the breach within thirty (30) days of performance.

17.3 Except as expressly provided in these Terms and to the fullest extent permitted by law, the Services, Data Products and Outputs are provided on an “as is” and “as available” basis, and Avinity disclaims all other warranties, conditions and representations, whether express or implied, including any implied warranties of satisfactory quality, fitness for a particular purpose and non-infringement.

17.4 Avinity does not warrant that the Services, Data Products or Outputs will be error-free, complete or uninterrupted. Subject to Clause 18.3, Avinity is not responsible for: (a) errors or inaccuracies in data supplied by the Client or obtained from third-party sources; (b) unauthorised access to Avinity’s systems or to information stored on them, except to the extent caused by Avinity’s failure to maintain the security measures described in Clause 11.3; or (c) viruses or other harmful code introduced by any third party.

17.5 Data Products, Outputs and recommendations support, but do not replace, the Client’s own business judgement, and Avinity does not guarantee any particular business result.

17.6 Information published on Avinity’s website may contain typographical errors, inaccuracies or omissions, which Avinity may correct at any time without notice. Such corrections do not change the fees or other terms agreed in a Services Agreement or Order.

18. LIMITATION OF LIABILITY

18.1 Subject to Clause 18.3 and to the fullest extent permitted by law, Avinity and its directors, employees and agents shall not be liable to the Client for any indirect, consequential, exemplary, incidental, special or punitive damages, or for any loss of profit, revenue, business or goodwill, arising from or in connection with the Services, even if Avinity has been advised of the possibility of such damages. Avinity is not liable for any loss or corruption of Client Data, except to the extent caused by its failure to comply with Clause 11.3, in which case its liability is limited to using reasonable efforts to restore the affected Client Data from its most recent backup.

18.2 Subject to Clause 18.3, Avinity’s total aggregate liability to the Client for any cause whatsoever, regardless of the form of action, shall not exceed the total fees paid by the Client to Avinity for the Services.

18.3 Nothing in these Terms excludes or limits any liability for death or personal injury caused by negligence, for fraud, or for any other liability that cannot be excluded or limited under applicable law.

19. INDEMNIFICATION

19.1 The Client shall defend, indemnify and hold harmless Avinity, its Affiliates and their respective directors, officers, employees and agents from and against all losses, damages, liabilities, costs and expenses (including reasonable legal fees) arising from any third-party claim or demand relating to: (a) Client Data, including any claim that Client Data infringes the rights of a third party or was collected or processed in breach of the PDPA or other applicable law; (b) the Client’s breach of Clause 5 or Clause 13.1; or (c) the Client’s violation of applicable law or of the rights of a third party, including intellectual property or privacy rights.

19.2 Avinity shall notify the Client promptly of any claim for which it seeks indemnity under Clause 19.1. Avinity may, at the Client’s expense, assume the exclusive defence and control of any such claim, and the Client shall cooperate with Avinity’s defence. Avinity shall not settle any such claim in a manner that requires the Client to admit liability or make a payment without the Client’s prior written consent, which shall not be unreasonably withheld.

19.3 Avinity shall defend the Client against any third-party claim that the Platform or the Deliverables, as provided by Avinity, infringe that third party’s intellectual property rights, and shall pay any damages and costs finally awarded or agreed in settlement, subject to the Client’s prompt notice, reasonable cooperation and Avinity’s sole control of the defence and settlement. If such a claim is made or appears likely, Avinity may, at its option: (a) obtain the right for the Client to continue using the affected item; (b) modify or replace it so that it is non-infringing; or (c) if neither is commercially reasonable, terminate the affected Fixed-Term Engagement or Subscription and refund any prepaid fees for the unused portion. This Clause does not apply to claims arising from Client Data, third-party data, modifications not made by Avinity, or combination with products or data not supplied by Avinity. Subject to Clause 18.2, this Clause states Avinity’s entire liability for intellectual property infringement claims.

20. NON-SOLICITATION

20.1 During the term of any Statement of Work and for twelve (12) months after its completion, the Client shall not, without Avinity’s prior written consent, directly or indirectly solicit for employment or engage any employee or subcontractor of Avinity who was involved in performing the Professional Services. This Clause does not restrict general recruitment advertising that is not targeted at Avinity’s personnel.

21. PUBLICITY

21.1 With the Client’s prior written consent, Avinity may identify the Client as a client of Avinity, including by using the Client’s name and logo, on its website and in its marketing materials.

22. ANTI-BRIBERY AND CORRUPTION

22.1 Each party shall comply with the Malaysian Anti-Corruption Commission Act 2009 and all other applicable anti-bribery and anti-corruption laws, and shall not offer, give, solicit or accept any gratification in connection with these Terms. Each party shall promptly report to the other any request or demand for an undue financial or other advantage received in connection with these Terms.

23. GOVERNING LAW AND DISPUTE RESOLUTION

23.1 Governing law. These Terms are governed by and construed in accordance with the laws of Malaysia. Nothing in these Terms removes any mandatory rights the Client may have as a consumer under the laws of the country in which it resides, including the Consumer Protection Act 1999 where applicable.

23.2 Informal negotiation. To expedite resolution and control the cost of any dispute, controversy or claim arising out of or in connection with these Terms (a “Dispute”), the parties shall first attempt to negotiate any Dispute informally for at least thirty (30) days before commencing formal proceedings. Informal negotiations commence upon written notice by one party to the other.

23.3 Any Dispute not resolved by informal negotiation shall be resolved: (a) where the Client is incorporated or resident in Malaysia, by the courts of Malaysia, to whose exclusive jurisdiction both parties submit; and (b) where the Client is incorporated or resident outside Malaysia, by arbitration administered by the Asian International Arbitration Centre (AIAC) in accordance with the AIAC Arbitration Rules, with its seat in Kuala Lumpur, conducted in English before a single arbitrator.

23.4 Exceptions. The following Disputes are not subject to Clauses 23.2 and 23.3: (a) Disputes seeking to enforce or protect, or concerning the validity of, any intellectual property rights of a party; (b) Disputes relating to allegations of theft, piracy, invasion of privacy or unauthorised use; and (c) any claim for urgent injunctive relief.

24. ELECTRONIC COMMUNICATIONS AND NOTICES

24.1 Visiting the Services, sending emails to Avinity and completing online forms constitute electronic communications. The Client consents to receive electronic communications and agrees that all agreements, notices, disclosures and other communications provided to it electronically, by email or on the Services, satisfy any legal requirement that such communications be in writing. The Client agrees to the use of electronic signatures, contracts, orders and other records, and to the electronic delivery of notices, policies and records of transactions initiated or completed by Avinity or via the Services, as permitted under the Electronic Commerce Act 2006 of Malaysia.

24.2 Notices to Avinity shall be sent to [email protected] or to the address in Clause 26. Notices to the Client shall be sent to the email address associated with its account or stated in the Services Agreement or Order. A notice sent by email is deemed received on the next Business Day after it is sent, provided that no delivery-failure message is received.

25. GENERAL PROVISIONS

25.1 Entire agreement. These Terms, together with any Services Agreement, Order, Statement of Work and the policies referenced in them, constitute the entire agreement between the parties regarding their subject matter, subject to Clause 2.3. Each party acknowledges that it has not relied on any statement or representation not set out in these Terms.

25.2 Waiver. A failure by either party to exercise or enforce any right or provision of these Terms does not operate as a waiver of that right or provision.

25.3 Force majeure. Neither party is liable for any delay or failure to perform its obligations (other than payment obligations) caused by events beyond its reasonable control, including natural disasters, epidemics, acts of government, war, terrorism, labour disputes, power or internet failures and failures of third-party hosting providers. If a force majeure event continues for more than sixty (60) days, either party may terminate the affected Fixed-Term Engagement or Subscription by written notice, and Avinity shall refund any prepaid fees for Services not delivered.

25.4 Assignment. Avinity may assign any or all of its rights and obligations under these Terms to an Affiliate or successor on notice to the Client. The Client shall not assign these Terms without Avinity’s prior written consent.

25.5 Severability. If any provision or part of a provision of these Terms is found to be unlawful, void or unenforceable, that provision or part is deemed severable and does not affect the validity and enforceability of the remaining provisions.

25.6 Relationship. Nothing in these Terms creates a joint venture, partnership, employment or agency relationship between the parties. Avinity performs the Services as an independent contractor.

25.7 Third-party rights. A person who is not a party to these Terms has no right to enforce any of its provisions.

25.8 Language. These Terms are drawn up in English. If they are translated into any other language, the English version prevails.

25.9 Interpretation. These Terms shall not be construed against Avinity by virtue of its having drafted them.

26. CONTACT INFORMATION

Complaints regarding the Services, requests for further information about their use and notices under these Terms may be directed to Avinity at the details below. General enquiries may also be made to [email protected] or by telephone at +60 16 615 2149.

  • Company: Avinity Analytics Sdn. Bhd. (Company Registration No. 202201002784 (1448481W))
  • Address: D-9-15, Oasis Square, No 2, Jalan PJU 1A/7A, Ara Damansara, 47301 Petaling Jaya, Selangor, Malaysia
  • Phone: +60 16 615 2149
  • Email: [email protected]
  • Security issues: [email protected]