TERMS AND CONDITIONS OF SERVICE
OF
TOP BERATEN MALAYSIA SDN. BHD.
JULY 2024

1. GENERAL TERMS AND CONDITIONS

1.1. All services of TOP Beraten Sdn. Bhd. (“TOPB”, “we” or “ours”) regarding the delivery of services are exclusively governed by these Terms and Conditions of Service unless otherwise agreed in Service Agreement or in writing between the Client and TOPB. This applies to all legal relationships between TOPB and the Client.

1.2. “Client” means the organisation, company or natural person with whom TOPB is performing the services.

1.3. Our Terms and Conditions of Service apply in their newest version and also for all subsequent services even if we do not expressly mention or agree with our Client again when concluding them.

2. PERFORMANCE OF SERVICES

2.1. The scope of each service shall be agreed upon in writing between the Client and TOPB before commencement of service.

2.2. TOPB shall determine the manner in which and the person by whom the engagement will be carried out, taking into account, as far as is feasible, the reasonable requests expressed by the Client.

2.3. Certain services may require additional insurance coverage, in which case the cost is chargeable to the Client unless otherwise agreed.

2.4. In the performance of our services, overseas Client not within the same time zone should take cognisance that there is a time difference as TOPB is based in Kuala Lumpur, Malaysia where the time zone is GMT+8.

2.5. While every effort will be made to ensure that the Client is satisfied with the services provided, should there be any dissatisfaction, the Client is to immediately contact TOPB to resolve any dispute that arises out of the performance of this Agreement.

3. SUBCONTRACTORS

3.1. In performing the services for the Client, TOPB may involve Subcontractors availing to the specific expertise or professional requirements. As a matter of company policy, TOPB shall have these Subcontractors enter into a data protection/confidentiality obligation.

3.2. To ensure that the services provided by the Company are of the highest standard and at all times accurate, the Client shall communicate solely with TOPB on the services agreed and must not directly contact any Subcontractors that have been appointed by TOPB unless consent is given by TOPB.

3.3. If requested by the Client, then TOPB will identify these Subcontractors, specifying in each case their specific expertise.

3.4. For the purpose of defining “Subcontractors”, Subcontractors are network partners or affiliates, or agents of TOPB such as but not limited to law firms, tax advisors, auditors or third parties engaged by TOPB.

4. FEES AND EXPENSES

4.1. TOPB has the right to bill the Client once instructions are given/confirmed. The exception would only be if it falls within the ambit of a special promotion that TOPB is conducting at the time of the contact by the Client.

4.2. Generally, TOPB charges an hourly rate in providing the services to the Client as specified herein unless stated otherwise in the Service Agreement:

For companies and individuals based overseas, our hourly rates are:

a) Managing Director – EUR 280 per hour
b) Associate Partner –EUR 250 per hour
c) Head of Department –EUR 200 per hour
d) Senior Advisor – EUR 180 per hour
e) Junior Advisor – EUR 150 per hour
f) Executive/Team Assistant – EUR 100 per hour
g) Courier Services – EUR 60 per hour

For companies and individuals who are based in Malaysia, our hourly rates are:

a) Managing Director – RM 950 per hour
b) Associate Partner – RM 850 per hour
c) Head of Department – RM 750 per hour
d) Senior Advisor – RM 600 per hour
e) Junior Advisor – RM 500 per hour
f) Executive/Team Assistant – RM 300 per hour
g) Courier Services – RM 80 per hour

4.3. Unless otherwise agreed in writing of exclusion of reimbursement, TOPB shall be entitled to be reimbursed by the Client for all of the following out-of-pocket expenses but not limited to:

a) travel expenses;
b) payment to Government Agencies;
c) stamping/certification/notary public;
d) project-related travel cost at RM 0.80/km or if E-hailing (the exact amount charged);
e) telephone costs (i.e international calls); and
f) translation.

including any other charges reasonably and properly incurred by TOPB in the performance of the services with the production of such evidence thereof as the Client may reasonably require.

4.4. TOPB fixed fees are based on the assumption that the information provided by the Client is in an orderly, timely and complete manner. In the event that TOPB has to sort-out, clarify or request for documents or information repeatedly, TOPB reserves the right to levy additional hours based on real time exposure in sorting out the information provided by the Client.

4.5. Unless otherwise agreed in writing, payment from the Client to TOPB shall be made within seven (7) days from the date of receipt of an invoice for all fees and/or any out-of-pocket expenses. Where applicable, all fees and out-of-pocket expenses are quoted both exclusive or inclusive of SST which will be charged at the statutory rate.

4.6. Payment shall be made into the bank account mentioned in the invoice. In the case of the delay in payment, TOPB shall be entitled to claim default interest at the rate of 5% monthly on the amount due accrued daily. Without prejudice to any other rights and remedies that it may have, TOPB may suspend provision of the services until payment in full including any interest accrued.

5. WARRANTIES

5.1. The Client warrants and represents that:

a) it is authorised and has the capacity to provide the information to TOPB for TOPB to perform its services and by providing that information it is not in any way in breach of any contract, law, by-laws, rule or regulation of the appropriate authorities; and

b) the information provided to TOPB for the performance of the services is up-to-date as at the date of submission and true, current, correct, complete, accurate and is not misleading.

6. INDEMNITY /LIMITATION OF LIABILITY

6.1. TOPB will be kept indemnified against all cost, expenses, claims, demands and liabilities for which TOPB may become liable and against all suits, proceedings, claims, actions, or demand of whatsoever nature which may be made against TOPB which may arise either directly or indirectly by reason of providing the services to the Client which is due to the Clients own failure, negligence or default.

6.2. In any event and to the extent permitted by law, the liability of TOPB, TOPB employees and any other partners or service providers (collectively known as the “Providers”) to the Client in respect of any liability in the performance of the services under the terms and condition contained herein whether in contract, tort (negligence and/or breach of statutory duty) and/or howsoever arising shall only be limited to the service fee invoiced to the Client for that portion of services giving rise to liability.

6.3. TOPB is not liable for any improper use or implementation by the Client of the recommendations or advices provided by TOPB within the scope of services.

6.4. TOPB is not liable to the extent to which any loss was caused or contributed by any negligence or other wrongful act or omission of the Client.

7. PERSONAL DATA PROTECTION & DATA PROTECTION

7.1. In performing our services for the Client, TOPB collects, obtains, stores and processes personal data and data relating to the Client’s business and its affiliates including but not limited to director’s information, shareholders and employees(“Data”). In order to perform our services, we may share your data with our network partners such as but not limited to law firms, tax advisors, or third party which has been engaged with the Client’s consent. In this respect, the Client also agrees that TOPB can transfer the Client’s Data out of Malaysia (if required).

7.2. In this context, TOPB follows the Client’s instructions and complies with Malaysian data protection law and regulation. For more information on our personal data privacy policy please refer to: www.topberaten.my/data-privacy.php

8. CONFIDENTIALITY

8.1. The Client and TOPB acknowledges and confirms that the Confidential Information of the other party constitutes valuable proprietary information and trade secrets of the other party and that the unauthorized use, loss or outside disclosure of such information shall cause irreparable injury to the other Party.

8.2. TOPB in performing the services for the Client shall keep secret and not disclose any Confidential Information obtained during the performance of the services.

8.3. Confidential Information shall include among other things, software, data files, databases, computer programmes, know-how and methodology, standard operating procedures, forms and customer listings, financial information and critical personal data including any information, facts, trade or business secrets:

a) that are connected with the principal and its parent or subsidiary company’s activities, internal company knowledge and /or workflows;

b) that are not in the public domain but rather are known only to a restricted group of people;
c) in whose non-disclosure the Principal and its parent or subsidiary company has an economic interest;
d) that are intended to remain secret in accordance with the principal’s wishes; or
e) is designated to be confidential or proprietary or is reasonably understood to be confidential or proprietary.

8.4. Confidential Information shall also include and is not limited to any oral, written, graphic or machine-readable or technical information including, but not limited to, that which relates to business plans, technology, product plans, products, method, techniques, developments, creation, processes, designs, drawings, formulae, invention, innovation, markets, software (including source and object code), hardware configuration, agreements with third parties, services, customers, marketing or finances of the disclosing party and economic information such as customer lists, price and financial data and sources of supply. The scope of Confidential Information further applies to models or instructions of a technical nature, particularly drawings, prototypes, patterns, segments or formula.

8.5. Each Party shall notify the other Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information of the other Party, and will cooperate with the other Party in every reasonable way to help regain possession of such information and to prevent its further unauthorized use.

8.6. Exception to the confidentiality stated above would not apply to:

a) knowledge available in the public domain without the fault of either party;
b) was already known by either party, other than under an obligation of confidentiality, at the time of disclosure by the Client;
c) is lawfully acquired by TOPB from a third party on a non-confidential basis; or
d) if TOPB is required to disclose pursuant to any law, lawful governmental, quasi-governmental or judicial order.

8.7. Notwithstanding the foregoing, TOPB may disclose Confidential Information of the Client to its employees, agents or subcontractors on a need-to-know basis.

8.8. Except with the prior written permission of TOPB, the Client shall not publish or otherwise make available the contents of proposals, reports, presentations, memos, or other communications by TOPB, unless these have been provided with the intention of providing third parties with the information set out therein. Furthermore, the Client shall not disclose any of TOPB methods and work strategies without TOPB’s written permission.

8.9. The provisions of Confidentiality shall apply during the term of the performance of the services and for a period of five (5) years thereafter from date of instructions of service.

9. INTELLECTUAL PROPERTY

9.1. The Client warrants that all reports and other deliverables, including but not limited to, all concepts, know-how, tools, questionnaires and assessments, modules, courses, frameworks, software, algorithms, databases, content, models, and industry perspectives developed or enhanced in connection with the services prepared for and furnished to the Client by TOPB will be used solely for the purposes of the services and will not be edited, translated, reprinted, passed on or disseminated without the explicit written consent of TOPB in each individual case.

9.2. The Client acknowledges that all intellectual property rights, including copyright, trademarks, patents, and trade secrets, in the reports and deliverables shall vest with TOPB, unless otherwise stated in writing.

10. TERMINATION

10.1. TOPB can terminate the performance of services for the Client at any time without notice on the following grounds:

a) major breach of the provisions in the Service Agreement or Terms and Conditions (if any);
b) default of its performance of any material obligation;
c) major non-disclosure which affects the performance of services by TOPB;
d) repeated inaccuracies or providing false information to TOPB in the performance of services;
e) legitimate concerns with non-compliance of statutory laws in Malaysia but not limited to Personal Data Protection, Anti-Bribery / Corruption, and Anti Money Laundering;
f) credit standing of the Client; or
g) delay in payments after the beginning of insolvency proceedings.

11. SEXUAL HARASSMENT

11.1. TOPB is committed to providing a safe and ethical work environment that is free from discrimination and harassment, including any form of sexual harassment.

11.2. This section shall apply to all TOPB directors, employees, business associates, which includes but not limited to, vendors, contractors, sub-contractors, consultants, trainers, agents, representatives, tenants and other intermediaries who are performing work or services, for and on behalf of TOPB. In addition, this section shall apply to all parties that are currently engaged with TOPB or have intentions to engage with TOPB in the future.

11.3. Sexual Harassment shall include but not limited to any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, including online harassment directed at a person which is offensive or humiliating or is a threat to his/her well-being.

11.4. TOPB has a zero-tolerance policy towards any type of Sexual Harassment and TOPB shall reserve the right to terminate its services with the Client if the Client or its director(s), employees, personnel, contractors or agents engaged in any form of Sexual Harassment towards the directors, personnel, employees or representatives of TOPB.

11.5. If the service is terminated pursuant to Subsection 11.4, without prejudice to TOPB’s other remedies at law or in equity, TOPB is entitled to declare immediately due and payable the remainder fees for all services performed. The Client acknowledges that the rights of TOPB are reasonable under all of the circumstances, and constitute liquidated damages for loss of bargain.

11.6. TOPB reserves the right to report any incidents of Sexual Harassment towards the directors, personnels, employees or representatives of TOPB to the Client’s Human Resources Department or to their management in their headquarters.

11.7. Nothing in this terms and conditions shall prohibit the complainant to lodge a police report or other necessary legal action in response to any sexual harassment.

12. DEFAMATION & HARRASMENT

12.1. The Client agrees not to engage in defamation or harassment while using the Company’s services towards the Company’s employees or other partner companies. The Company encourages reporting any defamation or harassment to its designated officer, and will conduct investigations and take necessary actions such as removing defamatory content and the Company may terminate the agreement effective immediately via a written notice.

13. ILLEGALITY

13.1. If at any time any provision of this Client Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Client Agreement under the law of that jurisdiction nor the legality, validity or enforceability of such provisions under the law of any other jurisdiction will be in any way affected.

14. OBLIGATION TO REPORT ILLEGAL ACTS

14.1. The Client acknowledges their obligation to report to the Company any known or suspected illegal acts committed through the use of the Company’s services. The Company may report any known or suspected illegal activities to the appropriate authorities, and the Client agrees to cooperate fully with any investigations conducted by legal authorities or the Company. Failure to report illegal acts or to cooperate with investigations may result in suspension or termination of the Client’s access to services and potential legal consequences.

15. GOVERNING LAW

15.1. The terms and conditions in the provision of services is governed and interpreted in accordance with the laws of Malaysia.

15.2. Any dispute shall first be resolved by trying to reach an amicable settlement before referring the dispute to the courts of Malaysia.

16. FORCE MAJEURE

16.1. In the event of a force majeure, TOPB shall not be held liable or responsible to the Client nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of the affected party including but not limited to fire, floods, embargoes, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labour disturbances, acts of God or acts, omissions or delays in acting by any governmental authority or the Client (“Force Majeure Event”).

16.2. TOPB if subjected to a Force Majeure Event shall promptly notify the Client of the occurrence and particulars of such Force Majeure Event and shall provide the Client, from time to time, with its best estimate of the duration of such Force Majeure Event and with notice of the termination thereof.

16.3. TOPB shall use diligent efforts to avoid or remove such causes of non-performance as soon as is reasonably practicable. Upon termination of the Force Majeure Event, the performance of any suspended obligation or duty shall without delay recommence.

16.4. TOPB, if subjected to the Force Majeure Event shall not be liable to the Client for any damages arising out of or relating to the suspension or termination of any of its obligations or duties under this Agreement by reason of the occurrence of a Force Majeure Event, provided that the Company complies with its obligations stated herein.

17. SEVERABILITY

17.1. Should any single provision contained in these terms and conditions be or become invalid, the invalidity of the said terms and conditions shall not affect the validity of the remaining terms and conditions contained herein. In this case, the invalid terms and condition shall be read down to the closest economic purpose of the invalid terms and condition for it to be legal and enforceable.

18. WAIVER

18.1. No delay, neglect or forbearance by TOPB in enforcing any provision of the Terms and Conditions shall be deemed to be a waiver or in any way prejudice any rights of that party.

18.2. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.

19. AMENDMENT TO TERMS AND CONDITIONS

19.1. TOPB reserves the rights to amend the terms and conditions from time to time, without further notice to the Client and the latest version of the terms and condition shall be effective immediately upon being posted on the website and any previous version of the terms and conditions released shall be superseded.